wm^^W:? ■"<--t^. t\ THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW Gift of LeriLti -ivio^d Co. INDEX-DIGEST OREGON AND WASHINGTON REPORTS raCLODING VOLUMES 1 TO U ORE&ON, AND 1 AND 2 WASHINGTON. By CHARLES H. CAREY, LL. B. SAN FRANCISCO: BANCROFT-WHITNEY CO:\[PANY, Law Publishers and Law Booksellers. 1888. 6 Entered according to Act of Congress in tlie year 1888, By BANCROFT-WHITNEY COMPANY, In the Oilicc of the Librarian of Congress, at Washington. PREFACE. Tnis work has been prepared while I have been engaged in active practice at the bar, and although the task has been somewhat arduous, it has not been devoid of interest and profit. If it now proves an aid to others, I will be doubly re- paid. Where there are so few reported decisions as in Oregon and Washington Territory, the bench and bar arc more or less familiar with them. The chief use, therefore, of such a work is to afford ready means of turning to a case wanted. The utility of a digest which will present a broader statement of the prop- ositions of law adjudicated than can be done in a mere index is, on the other hand, scarcely less apparent. I have therefore adopted a plan not materially differing from the index-digest system which has become so popular of late years, and hope by this method to combine the advantages of both index and digest. No extended explanation is necessary. It should be said, l)Owever, that I have not confined myself to a consideration of the points suggested by the syllabi of the cases, and have, in- deed, frequently had occasion to note points decided that are not referred to by the reporter, as well as in some few instances to correct manifest errors. The reference to book and page is always to the first page of tbe case as reported, whether the point referred to is to be found in the syllabus or only upon a careful reading of the body of the opinion. When two or more propositions are given as decided in the same case, the iv Preface. number of the book and page is given with the first stated, and the subsequent propositions refer to the case by the use of the abbreviation " Id." I have added also a list of citations, and a table of cases arranged alphabetically. This work is not put forth with confidence that it is perfect, but it is believed that, though errors may be discovered on put- ting it to the test of practical use, the need for such a book warrants its publication, and it is hoped that its imperfections may be forgiven if it be found useful and convenient. CHARLES H. CAREY. DIGEST OF THE OREGON AND WASHINGTON REPORTS. Abandonment. See Appeals and Errors; Dedication; Eminent Domain; Mines and Mining; Public Lands; Water and Watercourses. Abatement. See Nuisances. Pleading to the merits waives matter in abatement: Winter and Lattimer v. Norton, 1 Or. 42. Answer in abatement should be pleaded separately, and disposed of before answer to merits: Ilopwood v. Patter- son, 2 Or. 49. Plea of pendency of former suit for same cause of action should show it is still pending: Id. Denial of corporate existence, and matter in bar, cannot be pleaded and tried together: Oregon Central R. R. Co. V. Wait, 3 Or. 91; Oregon Central R. R. Co. v. Scoggin, 3 Or. IGl ; Oregon Cascade R. R. Co. v. Baily, 3 Or. 164. Denial of corporate existence stricken out when pleaded with matter in bar: Oregon Central R. R. Co. v. Scoggin, 3 Or. 161. Matter in abatement and bar, being pleaded in same an- swer, leave to amend as to the matter in abatement should bo denied: Id. On motion, defendant declining to elect between the de- fenses, the matter in abatement stricken out: Oregon Cascade R. R. Co. v. Baily, 3 Or. 164. When denial of corporate existence is abatement, and when bar: Id. Partner sued on joint note may plead misjoinder and non-joinder: Kamm v. Marker, 3 Or. 208. Ok. Dig.— 1 2 Abatement. Abatement (continued). In action against wife alone, coverture at the time of making tlie contract is matter in bar, but the fact of marriage since making the contract is pleadable in abatement: Kennard v. Sax, 3 Or. 263. Defense that the plaintiff has sold and does not own the account sued on, is not available, unless pleaded in abatement: Derkeny v. Belfils, 4 Or. 258. Abatement of appeal in criminal case by death of de- fendant leaves judgment for costs in force: Whitley v. Murphy, 5 Or. 328. Executrix substituted on motion as party plaintiff, ob- jection to her qualification, unless taken, by abatement, is waived: Murray v. Murray, 6 Or. 26. Pendency of suit in equity on same controversy is not usuallv ground to abate action at law: Farris v. Hayes, 9 Or. 81. Abortion. Instructions held sufhcient in manslaughter by attempted abortion: State v. Glass, 5 Or. 73 Absconding Debtor. Absconding debtor defined: Norman v. Zieber, 3 Or. 197. Accessaries. When one strikes the fatal blow, and the other is present and assisting, both are principals: State v. Fitzhugh, 2 Or. 227. Acts of each person involved in a criminal enterprise ren- der all responsible for the results: State v. Johnson, 7 Or. 210. Testimony of accomplice alone is not sufficient to warrant conviction: State v. Odell, 8 Or. 30. Proof that prisoner was in the same town at the time is not alone sufficient corroboration: Id. One present aiding and abetting may be convicted on an indictment charging him directly with the commis- sion of the act: State v. Kirk, 10 Or. 505. An accessary before the fact is not a competent witness on behalf of the prisoner: Edwards v. Territory, 1 W. T. 195. The statutes of 1862-63 do not alter the rule of the com- mon law in this respect: Id. Accession. See Water and Watercourses. Accounts. 3 Accomplices. See Accessaries. Accord and Satisfaction. See Compromise; Settlement. Account-books. See Evidence. Accident. See Mistake and Accident. Accounting. When partners arc entitled to, and what complaint must show: Pool V. Buffum, 3 Or. 440. Referee for an accounting between partners should ascer- tain what the profits were; not what they should have been: Boire v. McGinn, 8 Or. 466. Dissolution partly consummated, equity will take juris- diction for an accounting, and ascertain amounts due on final settlement: Gleason v. Van Aernam, 9 Or. 343. An agreement entered into between the partners on such partial dissolution will be recognized and enforced in the suit in equity for an accounting: Id. Suit for, against former commissioners of school lands, may be maintained in the name of the state: State v. Chadwick and Brown, 10 Or. 423. In such suit allegations in the answer that the funds were expended in payment of just and legal claims against the state are mere conclusions of law, and tender no ■ issue of fact: Id. Right of a joint owner to an accounting of the earnings of a ferry: Ilackett v. Multnomah County, 12 Or. 124. In a suit by an assignor against an assignee for the bene- fit of creditors, for an accounting, when parties can recover costs and attorneys' fees: Kinney v. Heatley, 13 Or. 35. In a suit between partners for an accounting, they are usually severally, but not jointly, liable: Bloomfield v. Buchanan, 14 Or. 181. But where there is a concerted action by some^ the partners to exclude one from the profits, they are jointly and severally liable: Id. Accounts. See Partnership. If an account furnished on demand for items under the statute is insufficient, the rernedy is by motion to make the same more definite and certain: Flanders v. Ish, 2 Or. 320. No interest allowed on mutual accounts until after settle- ment and balance struck: Catlin v. Knott, 2 Or. 321. 4 Accounts. Accounts (continued). Claims against the state, allowed by the secretary of state, do not thereby become accounts stated, and may be shown in collateral attack to be illegal claims: State V. Brown, 10 Or. 215. What is an open mutual account within the subdivision 3, section 539, Civil Code (sec. 549, Hill's A. L.), relat- ing to costs: Hayden v. Waymire, 10 Or. 307. Proper verification of an itemized account sued on, fur- nished on demand: Robbins v. Benson, 11 Or. 514. Objection to the verification if not made promptly is waived: Id. Account stated is prima facie a settlement of all de- mands, but not conclusive, and does not bar recovery of debt existing at the time and not included: Nor- mandin v. Gratton, 12 Or. 505. Evidence is admissible in an action on an account stated to show that certain matters were not included: Id. False and fraudulent representations accompanying ren- dering of an account afford ground for disputing ac- count stated: Kinney v. Heatley, 13 Or. 35. A letter containing an account rendered, and not objected to within a reasonable time, is evidence of the facts contained: Smith v. Kennedy, 1 W. T. 55. The failure to object to an account stated, within reason- able time, creates presumption of correctness, and shifts burden of proof: Baxter v. Waite, 2 \V. T. 228. The statement of the account, not by agreement, but by silence, creates not a new contract by estoppel, but es- tablishes prima facie the correctness of the items: Id. Error to instruct that, after an account is stated, a party not objecting within reasonable time is bound thereby, imlcss he establish errors and a want of knowledge on his part of the existence of the errors at the time of the rendering of the account to him: Id. Error to instruct that the defendant would not be liable on items in which he discovered errors or mistakes up to the time of commencement of suit: Id. Such instruction precludes defendant from taking ad- vantage of errors ascertained after commencement of the suit up to the time of trial: Id. Acknowledgments. 6 Accounts (continued). To create an account stated by way of estoppel, what knowledge is necessary: Id. Interest is not recoverable on an open account unless stipulated for: Id. Pleadings admitting a portion of an open account sued on, the plaintiff is entitled to interest on the part ad- mitted, from the time of the commencement of th-a action: r>reen)er v. Burgees, 2 W. T. 290. Acknowledgments. Of deeds out of the state, statute must be strictly com- l)lied with: Knighton v. Smith, 1 Or. 27G. A deed is good between the parties, unacknowledged: Moore v. Thomas, 1 Or. 201; Mann v. Young, 1 W. T. 454. Without acknowledgment, a married woman does not re- linquish dower by signing husband's deed: Mann v. Young, 1 W. T. 454. Recorded unacknowledged mortgage is no notice to sub- sequent mortgagee: Id. Acknowledgment of feme covert, not showing separate ex- amination, a parol showing cannot be made: Ilarty v. Ladd, 3 Or. 353. Parol evidence not admissible to impeach certificate regu- lar on its face, unless there are allegations in the plead- ings to warrant it: Dolph v. Barney, 5 Or. 192; Moore V. Fuller, 6 Or. 272. Acknowledgment taken by a deputy clerk without naming his principal, good under territorial law of 185G by which deputy is an independent officer : Willamette County v. Oordon, G Or. 175. Deeds and powers of attorney, not acknowledged, but duly executed in 1845 and 1846, may be proved under sections 17 and 18, page 517, General Laws (sees. 3018, 3019, Hill's A. L.) to entitle them to record: Wson v. McEwan, 7 Or. 87. Deed not entitled to record, but recorded, is not entitled to priority over mortgage acknowledged and entitled to record, and executed and recorded at same time as the deed: Fleschner v. Sumpter, 12 Or. 161. Certificate in proof of unacknowledged deed must show the witnesses were sworn, and must state that fact: Mclntyre v. Kamm, 12 Or. 253. 6 Acknowledgments. Acknowledgments (continued). Unacknowledged deed conveys title, and is good as against every one but a bona fide purchaser for a valuable con- sideration: Manandas v. Mann, 14 Or. 450; Mann v. Young, 1 W. T. 454. Such deed, to be followed by evidence of notice, is admis- sible as evidence against one who has a subsequent deed duly recorded: Mann v. Young, 1 W. T. 454. Statute of 1867 curing defectively acknowledged deeds is constitutional, and applicable to case of married women: Skellinger v. Smith, 1 \V. T. 369. The authority of a notary public to take the acknowledg- ment of a deed cannot be questioned collaterally: Bul- lene v. Garrison, 1 W. T. 587. Validity of a deed acknowledged before a county auditor in 1867, not authenticated by his seal, is not decided; but if defective, it was cured by Curative Act, p. 481, Laws of 1873: Kenyon v. Knipe, 2 W. T. 422. Actions and Suits. See Accounting; Assumpsit; Bills and Notes; Contracts; Corporations; District Attorney; Fraud and Deceit; Forcible Entry and Detainer; .Judg- ment; Landlord and Tenant; Liens; Malicious Prose- cution; Parties; Pleading; Practice; Replevin; Quo Warranto; Slander and Libel; Statute of Limita- tions. No action lies to recover back money paid under mistake of law without fraud: Johnson v. McGinness, 1 Or. 292. Amendment of section 93 (sec. 95, Hill's A. L.) of the Code relating to distinction in practice in equity or law cases does not affect pending cases: Newsom v. Green- wood, 4 Or. 119. Proceeding by indictment is an "action at law" within the section of the gambling law of 1876 (Hill's A. L., c. 45), providing for the recovery of fines and forfeit- ures: State V. Carr, 6 Or. 133. Suit is deemed pending until an appeal is perfected or the period for taking appeal has expired: 6 Or. 166; Garrison v. Cheeney, 1 W. T. 489. Suit cannot be brought in the name of the state to try private controversy: Wilson and Wakeman v. Shively, 10 Or. 267. Actions and Suits. 7 Actions and Suits (continued). State has power to bring suit in its name for an account- ing against persons having charge of school funds: State V. Chadwick and Brown, 10 Or. 423. Essential distinctions between actions and suits are not abrogated by the Code: Knowles v. Herbert, 11 Or. 54; S. C, 11 Or. 240; Beacannon v. Liebe, 11 Or. 443; Burrage v. B. G. & Q. M. Co., 12 Or. 169. Proceedings supplemental to execution are proceedings at law: Burrage v. B. G. & Q. M. Co., 12 Or. 169; Wil- liams V. Gallick, 11 Or. 337; contra, Murne v. Schwa- bacher Bros. & Co., 2 W. T. 130. When the mode of proceeding is not pointed out by the Code, the Circuit Court has jurisdiction to enforce a right, and a remedy may be adopted conformable to the spirit of the Code: Aiken v. Aiken, 12 Or. 203. Statute giving cumulative damages to party aggrieved is remedial, and not criminal, and the action is a civil action: O'Keefe v. Weber, 14 Or. 55. Proceedings had in a suit in accordance with the law in effect at tlie time are valid, and amendment to the law operates only upon subsequent proceedings: Marks & Co. V. Crow, 14 Or. 382. An act of the legislative assembly destroying distinctions between law and equity, and establishing single form of action to establish and enforce private rights, is in vio- lation of the Organic Act: Stevens v. Baker, 1 W. T. 315. Organic act contemplates distinction between courts of law, chancery, and admiralty, and their procedure: Id. In the absence of local equity system, the rules adopted by the Supreme Court of the United States are bind- ing: Id. "Civil actions " under Code of 1869, included action at law and suits in equity: Garrison v. Cheeney^l W. T. 489. ^ Pleadings and proceedings in both classes Of cases were to be governed by the provisions of that act: Id. By the Amended Code of 1871, the distinction between law and equity was aflirmed: Id. Actions at law were thereafter to be governed by the Code, and equity cases by the laws of the United States and the rules of the Supreme Court thereof: Id. 8 Actions and Suits, Actions and Suits (continued). An action for divorce is a proceeding at law: Tierney v. Tierney, 1 W. T. 568. It is against public policy for persons to occupy the atten- tion of the courts with pretended litigation, in which there are no questions to be judicially determined: Connoly v. Cunningham, 2 W. T. 242. Administration. See Administrators and Executors; Lega- cies; Heirs; Wills. A law passed after the death of an intestate, but before distribution of his estate, controls such distribution: Armstrong v. Armstrong, 1 Or. 207. Claims presented must be verified by the claimant, and not by his agent: Zachary v. Chambers, 1 Or. 321. Where there is no legal presentment of claim within the statutory time, it is barred to suit thereon: Id. Administrators, executors, and guardians are the claim- ants who must present claims due the estate or persons they represent: Id. Sale by executors who are mere naked trustees to sell and convey need not be reported to Probate Court: Hogan V. Wyman, 2 Or. 302; Hogan v. Wyman, 7 Or. 285. County Court has no power to determine what persons are entitled to realty and partition the same: Hanner V. Silver, 2 Or. 336, Burnside v. Savier, 6 Or. 154. County Court is a court of superior jurisdiction in probate matters: Russell v. Lewis, 3 Or. 380; Tustin v. Gaunt, 4 Or. 305. Recitals of jurisdictional facts in orders for sale of prop- erty are presumed true, and the burden of proof to the contrary is on attacking party: Tustin v. Gaunt, 4 Or. 305. Mistake in making up the record is presumed rather than that order of sale was made before return day: Id.; and see Walker v. Goldsmith, 14 Or. 125. Estate acquired by heirs of settler on donation claim, who dies before completing his four years' residence, and before patent, not subject to administration: Delay v. Chapman, 3 Or. 459. Sale of decedent's real property void where infant heir was not made party, and did not appear by guardian: Fiske v. Kellogg, 3 Or. 503. Administration. 9 Administration (continued). Under statute of 1855, heirs are necessary parties to a proceeding to sell a decedent's realty, and court must acquire jurisdiction of the parties: Id. Purchaser at administrator's sale has no right to appeal from order of sale or order of confirmation: Levy v. Riley, 4 Or. 392. Recitals in order of sale may be disputed by parts of judgment roll showing want of jurisdiction: Gilmore v. Taylor, 5 Or. 89. Provision in will directing that wife and minor children have use of realty until disposed of by executor, valid: Humphrey v. Taylor, 5 Or. 260. Order to sell realty, and confirmation unnecessary, where executors are mere naked trustees in whom the legal title is vested: Brown v. Brown, 7 Or. 285. Acts done in administration under a will duly probated, but afterwards held invalid, are binding: Id. After disallowance of a claim, and final settlement of es- tate without objection, creditor cannot sue next of kin on his claim: Grange Union v. Burkhart, 8 Or. 51. County Court has exclusive jurisdiction over distribution of the personalty: Winkle v. Winkle, 8 Or. 193. An antenupital contract in regard to the personalty must be presented and given effect by the County Court, and equity cannot afford relief where it is not done: Id. Neglect to appeal from order of distribution concludes the parties, and the order becomes final: Id. Before dower is assigned, widow has no estate in dece- dent's lands, and no right to the rents: Leonard v. Grant, 8 Or. 276. The rents and profits are to be applied to the payment of the debts agjlinst the estate until dower is assigned: Id. A " claim " against an estate is a legal denumd fof~money to be paid out of the estate, and must have been re- coverable from deceased if he had lived : Weill v. Clark's Estate, 9 Or. 387. A mere equitable right, not enforceable in a Probate Court, is not a claim: Id. Tender by an heir to pay a claim against the estate will not be ground for refusing an order for sale of real property of the estate to pay such claim: Id. 10 Administration. Administration (continued). Whether an order is intended as a final order or not is to be determined by the intention of the court: Harvey's Heirs v. Wait, 10 Or. 117. Petition for sale of realty is jurisdictional, and must strictly comply with the statute: Wright and Jones v. Edwards, 10 Or. 298. Sale is void on collateral attack where jurisdiction does not appear affirmatively from the petition: Id. County Court has exclusive jurisdiction to settle final ac- counts of administrator: Adams v-. Petrain, 11 Or. 304. Action cannot be maintained against administrator on his bond until his accounts have been settled in the County Court: Id.; and see Hamlin v. Kinney, 2 Or. 91. County Court has exclusive jurisdiction to grant and re- voke letters of administration: Ramp v. McDanicl, 12 Or. 108. Error in appointing creditor administrator before the widow declines to act, when not taken advantage of by applying for appointment within statutory . time, is waived: Id. Order appointing or removing administrator cannot be collaterally attacked: Id. Power of County Court to allow administrator to resign is not limited to the mode prescribed by statute: Id. Probate powers of County Court are not created by statute, but are thereby enlarged, limited, or varied: Id. Widow is entitled to dwelling-house for one year, and this right is not affected by section 1094 Civil Code (sec. 112G, Hill's A. L.): Aiken v. Aiken, 12 Or. 203. But husband must have been seised of the land, and not have held a mere leasehold interest: Id. Widow cannot obtain possession by ejectment or forcible entry and detainer: Id. Objection to a claim for informality must specify the ground, or the objection is waived: Aiken v. Coolidge, 12 Or. 244. Residue defined; it is ascertained on presentation and allowance of final account, and residuary legatee is then entitled to take: Leahy v. Cardwcll, 14 Or. 171. Administration. 1 1 Administration (continued). Such legatee is not chargeable with interest on notes given to executor for funds belonging to the estate after final settlement: Id. The effect of section 371, Civil Code (sec. 375, Hill's A. L.), is to abolish the common-law rule, making one who wrongfully interferes with an estate an execu- tor dc son tort: Rutherford v. Thomp.son, 14 Or. 236. But such person is held liable after appointment of ad- ministrator by an action at law in the name of the administrator: Id. And in such action such person may show in mitigation of damages that he used the proceeds of the property to pay the debts of the estate: Id. Administrator takes entire charge of the estate, whether it passes to an heir by descent, or otherwise: Ward v. Moorey, 1 W. T. 104. In the absence of statute, surviving partner has absolute control of partnership effects: Barlow and Shepherd v. Coggan, 1 W. T. 257. Remedy cannot be had against executor of deceased partner for partnership debt, unless the partnership property is insufficient to satisfy it: Id. Presentment and demand of a promissory note signed by partners should be made of surviving partner, and not of executor of deceased partner: Id. General provision that claim must, before suit brought, be presented to administrator has no api^lication to such case: Id. Courts do not recognize the personal representative of a deceased person appointed by foreign state: Id. In Washington Territory property vested in a non-resi- dent administrator is liable to attachment and other process: Id. — On the decease of an intestate pre-emptor, whose title at time of death was inchoate, a salable possessory right passes to the administrator: Burch v. McDaniel and Johnson, 2 W. T. 58. Administrator of a deceased pre-emptor takes his de- cedent's possessory right subject to a trust requiring him to complete the title, if of advantage to the heirs, and if he can do so: Id. 12 Administration. Administration (continued). For the discharge of this duty, administrator is liable as for the discharge of any other duty: Id. Aside from this trust, administrator is free to dispose of this possessory right for the benefit of the estate: Id. The pre-emption statutes place the one restriction on the administrator, viz., a continuance of the restriction on the pre-emptor against transferring any interest in the land: Id. Sale of personal property of estate,made by executor with- out order of court, may be ratified" by the court if ad- vantageous to the estate: Brewster v. Baxter, 2 W. T. 135. So one interested in the estate may ratify such sale to the extent of his interest: Id. Instruction to the effect that a demanding of an account- ing by one interested in the estate, of the proceeds of such invalid sale, with full knowledge of the facts, is a ratification of the sale, is not erroneous: Id. Failure to verify a petition which is the foundation of pro- bate proceedings is but an irregularity, and does not render the proceedings subject to collateral attack: McCoy V. Ayres, 2 W. T. 203. Transcript of record of Probate Court in Oregon, showing that that court had assumed jurisdiction over certain notes, is prima facie evidence that they were within the state of Oregon at the time: Id. In an action by administrator against a son of the de- ceasd for misappropriation of part of the estate, a brother of the defendant is a competent witness in his behalf: INIcCoy v. Ayres, 2 W. T. 807. In such case the brother is not interested adversely to the estate, and does not come within the statute forbidding party in interest to the record from testifying: Id. Action will not lie at common law against one collecting debts due an estate, for the reason that the original debtor remains liable: Id. But in the case of specific chattels taken, the rule is other- wise: Id. Suit in equity can be maintained against a person so col- lecting, if it be shown that the original debtor is insol- vent: Id. Administrators and Executors. 13 Administration (continued). Notes found in the state of Oregon, at the place of death of the deceased, are properly payable in that state, though secured by mortgage in Washington Territory: Id. An accounting for such notes to the Probate Court in Oregon relieves administrator, appointed there, from liabiUty in an action in Washington Territory by ad- ministnitor appointed there: Id. Administrators and Executors. See Administration. Executor and his sureties are not liable on his bond until default of the executor in Probate Court: Hamlin v. Kinney, 2 Or. 91; Adams v. Petrain, 11 Or. 304. Executors of a naked trust to sell and convey need not qualify or make report of sale: Hogan v. Wyman, 2 Or. 302. Possession and control of executor over property is that of an owner for purposes of taxation: Johnson v. Oregon City, 2 Or. 327; Johnson v. City Council of Oregon City, 3 Or. 13. Control of administrator over an estate, under section 1088 (sec. 1120, Hill's A. L.), is limited by sections llGl and 1162 of the Code (sees. 1193, 1194, Hill's A. L.), providing for proceedings to set aside the share of an heir or other person in an estate: Hanner v. Silver, 2 Or. 336. Situs of personalty is with resident rather than with non-resident co-executor: Johnson v. City Council of Oregon City, 3 Or. 13. Administrator has no right or interest in the estate of the heirs of a settler on donation claim, who dies be- fore patent issues: Delay v. Chapman, 3 Or. 459. Administrator has no right to sue to set aside a convey- ance made by his decedent fraudulently, withoutr-4cave of court: King and Lownsdale v. Boyd, 4 Qr. 326. Eiglit to real estate limited to purposes of administra- tion: Id.; Humphreys v. Taylor, 5 Or. 260. When ordered to file new bond and fails to comply, deemed removed and his authority ceased: Levy v. Riley, 4 Or. 392. Purchaser at sale of sucli administrator, without knowl- edge, is entitled to relief in equity: Id. 14 Administrators and Executors. Administrators and Executors (continued). Executor, or his heirs, are not allowed interest on setting aside a conveyance to the executor of land of the estate bought in by him: Layton v. Hogue, 5 Or. 93. Cannot maintain action for the recovery of possession of real property of the estate: Humphreys v. Taylor, 5 Or. 260. On death of plaintiff, if executrix is upon motion substi- tuted as plaintiff in the action, objection to her appoint- ment must be taken by plea in abatement, or is waived : Murray v. Murray, 6 Or. 26. Though such executrix is not regularly appointed, and entitled to sue as such, she is a proper party if she be the legatee to the real property in controversy, and therefore the successor in interest of the plaintiff: Id. Administrator's bond failing to express penal sum, mis- take not presumed against sureties: Evarts v. Steger, 5 Or. 147. Such bond is void, and cannot be reformed in equity: Evarts v. Steger, 6 Or. 55. Administrator has no authority to partition real estate of partnership: Burnside v. Savier, 6 Or. 154. Where the estate is indebted, the administrator is a trustee for the creditors, and may show that a bill of sale made by his intestate was intended fraudulently as a chattel mortgage: Bartel v. Lope, 6 Or. 321. Where the will directs payment of debts, and the realty is devised to executors as trustees to hold for certain purposes, they have implied power to sell portions to pay the debts: Brown v. Brown, 7 Or. 285. Administrator is entitled to control real estate and use the rents and profits to pay the debts, and widow is not entitled to receive one third of the rents before dower is assigned: Leonard v. Grant, 8 Or. 276. Action against administrator cannot be commenced within six months after letters issued: Wells v. Apple- gate, 10 Or. 519. . Allegation in the complaint that the order of appoint- ment was made on a certain day is not an allegation that letters issued on that day: Id. But after verdict it is presumed that the executors quali- fied immediately after letters issued: Aiken v. Coolidge, 12 Or. 244. Admiralty. 15 Administrators and Executors (continued). Not liable on bond for delinquencies until their accounts have been settled in County Court, even though re- moved for misconduct before the estate is fully admin- istered: Adams v. Petrain, 11 Or. 304. Property in the hands of executor before distribution is in custody of the law, and not subject to garnishment: Harrington v. La Rocque, 13 Or. 344. But after distributive share has been ordered paid to dev- isee, it is subject to garnishment: Id. Assignee of devisee may notify executor of the assign- ment of such share to him, and so require payment to be made to him : Id. But assignee cannot have a decree of court on distribu- tion ordering such payment to be make to him; and any such decree is void on collateral attack: Id. Administrator takes charge of the entire estate of the decedent, whether it passes to the heir by descent or otherwise: Ward v. Moorey, 1 W. T. 104. Admiralty. See Boats and Vessels; Common Carriers; Masters. No new evidence can be received in admiralty cases by the Supreme Court: Cutler v. Steamship Columbia, 1 Or. 101; Nickels v. Griffin, 1 W. T. 374; contra, Phelps V. S. S. City of Panama, 1 W. T. 615. Collision case between brig and steamer on the Columbia River: Cutler v. Steamship Columbia, 1 Or. 101. Rule in admiralty suits in rem and in personam as to charging a ship as carrier: Seller v. Steamship Pacific, 1 Or. 409. •Power of master to bind owner of vessel: Gove v. Moses, 1 W. T. 7. Material-men have no lien on domestic ^'x?ssel injiome port, or that where the owner resides; though circum- stances may qualify the rule: Price, Green, & Co. v. Lightner, 1 W. T. 33. Surrender of possession is a waiver of lien: Id. Statute of California creates no lien until the proceedings are instituted to enforce the liability as therein pro- vided: Id. There being no such lien created in this case, the court, sitting in admiralty, can exercise no jurisdiction: Id. 16 Admiralty. Admiralty (continued). Courts of admiralty proceeding in rem, in a proper case, sometimes recognize and enforce maritime claims of an equitable character not actual liens: Id. Claims for brokerage, factorage, etc., held a charge for which the ship was liable, to be paid out of funds in the court: Id. Vessels navigating Puget Sound, as those on the sea, must observe the rules established by the board of inspection of the United States: Meigs and Talbot v. Steamship Northerner, 1 W. T. 78. Failure of vessel to exhibit lights does not excuse another from faults contributing to a collision: Id. Vessel without lights is in fault, unless she govern herself by the lights of approaching steamer: Id. When collision is the result of mutual faults, damages and costs should be equally apportioned: Id.; Puget Sound C. Co. V. Taylor, 2 W. T. 93. Omission to decree costs in admiralty case docs not pre- vent the decree from being final: Sloop Lconede v. United States, 1 W. T. 153. Costs rest largely in the discretion of an admiralty court, and omission in decree is presumptive that court did not intend to decree costs: Id. Mode of appeal in admiralty in Washington Territory is the same as from District to Circuit Court of United States: Id. Manner of appeal and review in admiralty cases specifi- cally pointed out and distinguished: Id. Supreme Court of the territory has made no rules govern- ing appeal in admiralty cases; as to whether it has power to do so, quaere: Nickels v. Griffin, 1 W. T. 374. Supreme Court of the United States has made no rules governing the territorial court in such appeals: Id. Neither Congress nor the territorial legislature have at- tempted to regulate admiralty practice in the District Courts of the territory: Id. District Courts of the territory are free to adopt the admi- ralty rules of the United States District Court: Id. In the absence of rules or law of Congress regulating ap- peals in admiralty cases to the Supreme Court of the territory, the statutes of the territory prevail: Id. Admiralty. 17 Admiralty (continued). Admiralty cases must come to the Supreme Court by ap- peal: Id. The simple relation of master and servant does not ex- press the more complex relation of shipmaster and crew: Id. Such relation has been likened to that of parent and child, teacher and pupil, and head of a family to his domestic servants: Id. The trust of the master is the care of his vessel, cargo, crew, passengers, and the promotion and transaction of his vessel's business: Id. The maintaining of good order on his vessel is one of the- duties of a master: Id. There is an implied contract in shipping articles of obedi- ence on the part of the sailor and protection on the part of the master: Id. As against himself, a master is conclusively presumed competent to discharge his duties: Id. Where a master permits his mate, without sufficient cause,, to inflict personal injuries on a seaman, he is liable as. though personally guilty: Id. The lower court properly refused to admit certain excul- patory evidence on the part of the master: Id. Admiralty jurisdiction is vested in District Court of Wash- ington Territory: Phelps v. S. S. City of Panama, 1 W. T. 518. Before the adoption of the federal constitution, admiralty- law was local and territorial, but became part of the laws of the United States, with its procedure, by the: adoption of the constitution: Id. Law maritime and admiralty was in the territory as part of the local law before the territory was erected, and was then to be classed among the laws of the Terri- tory, as referred to in the Organic Act: Id. Law admiralty, as a federal law, displaced the territorial admiralty law by virtue of act of Congress extending to the territory the laws of the United States not inap- plicable: Id. Name of libelant, unnecessarily inserted in libel, should be stricken out if motion is made at proper stage; other- wise, will not be noticed: Id. On. Dig.— 2 18 Admiralty. Admiralty (continued). Suit is properly brought in rem for personal injuries occa- sioned to passenger by negligence in violation of duty as carriers: Id. The circumstance that the subject of transportation is a person instead of merchandise should not alter the rule: Id. No right of trial by jury in such case: Id. To warrant reversal on the facts, there should be such preponderance as would warrant setting aside verdict of a jury: Id. A deposition to be used in an admiralty case may properly be taken before a notary public: Phelps v. S. S. City of Panama, 1 W. T. 615. Practice in taking depositions in admiralty cases is gov- erned by the rules of the United States courts and stat- utes of the United States, and with the statutes there must be strict compliance: Id. Opening a deposition by the clerk, and placing same on file without order of the court, in such case, precludes its being received in evidence: Id. Appeals from District to Supreme Court in admiralty must be taken in accordance with the civil law: Steamer Zephyr v. Brown, 2 W. T. 44. Allowance of such appeal is necessary by the lower court to give the appellate court jurisdiction: Id. In the absence of rule or statute, such appeal must be . taken during a sitting of the court, or at the time of sentence: Id. And must be taken to the next succeeding term of the appellate court: Id. No written petition for appeal or for apostles is necessary when, at time of sentence, the court allows time for appeal: Waddell and Miles v. Steamer Daisy, 2 W. T. 7G. The action of the court, in such case, in granting time for the appeal, was sufficient letters dismissory of the cause: Id. Practice has made the filing of an appellatory libel, as known to the civil law, unnecessary: Id. No monition issuing out of the Supreme Court to the trial court to transmit the cause is necessary, especially Adverse Possession. 19 Admiralty (continued). where there is no unwillingness on the part of the judge of the lower court: Id. Steamer not liable to owner of material used in building machinery furnished her, where such owner furnished the same to one who had a contract to build the machin- ery, and owners and agents of vessel did not authorize using said material: Id. Test, whether contract for furnishing materials is a mari- time contract, is whether vessel is so far finished at the time that anything further done on her Avould, in its nature, be maritime: Id. Libel averring the material was used in building the ves- sel demonstrates that the contract was non-maritime, and court has no jurisdiction in rem: Id. Doubt expressed, of power of legislature to confer on courts power to entertain suits in rem in admiralty for materials furnished in building a vessel: Id. Section 823, Revised Statutes, and those following it, de- termine the tariff of fees for clerks of territorial courts in admiralty cases: Id. Under admiralty rule IG, suit in rem against vessel for assault upon seamen by officers is precluded: Smith v. Ship Challenger, 2 W. T. 447. The remedy is by action in personam: Id. Adverse Possession. See Dedication; Possession; Statute of Limitations. Quiet and exclusive possession is evidence of title until a better is shown: Oregon Cascade R. R. Co. v. Oregon Steam Nav. Co., 3 Or. 178. Purchaser of several town lots and blocks residing on one block, his occupancy is not adverse as to the other lots or blocks, unoccupied and unimproved, against one having prior title: Wilson v. McEwan, 7 Or. 8/. Person in adverse possession erecting a wooden build- ing on blocks or posts cannot remove it when ousted by the rightful owner: Doscher v. Blackiston, 7 Or. 143. Person entering under color of title is presumed to enter and occupy to the boundaries expressed in the title: Phillipi V. Thompson, 8 Or. 428; Joy v. Stump, 14 Or. 361. 20 Adverse Possession. Adverse Possession (continued). Person claiming by adverse possession may prove color of title under a tax deed, though the description therein is imperfect: Smith v. Shattuck, 12 Or. 3G2. Adverse possession of real property for the statutory period ripens into a perfect title and becomes a vested right as though evidenced by written title: Parker v. Metzger, 12 Or. 407; Joy v. Stump, 14 Or. 361. Grant of easement is presumed from adverse enjoyment for statutory period: Johnson v. Knott, 13 Or. 308. Payment of taxes by the owner of the soil is not incon- sistent with acquisition of such right: Id. Must be an occupancy under claim of ownership, though it need not be under color of title: Swift v. Mulkey, 14 Or. 59. Deed of quitclaim or other instrument that purports to convey title is sufficient to constitute color of litle: Id. Where title to land is in an infant, his mother residing on the land as a family residence, collecting rents in his name, and listing the property for taxation in his name, cannot acquire title by adverse possession : Law- rence V. Lawrence, 14 Or. 77. The possession must be hostile; husband and wife can- not occupy jointly, adverse to each other: Springer v. Young, 14 dr. 280. There must be a disseisin, which must be an actual ex- pulsion for the full statutory period: Id. Adverse possession for statutory period confers such title as will support an action in ejectment: Joy v. Stump, 14 Or. 3G1. Possession as foundation of adverse claim must be actual occupancy, and will not be extended by construction beyond actual limits of the occupation: Id. Possession of donation claim by a party claiming under a quitclaim deed, executed before completion of resi- dence and cultivation for four years, is possession under contract prohibited by law, and gives no color of title: Bullene v. Garrison, 1 W. T. 587. Such possession cannot be adverse, so as to entitle pos- sessor to benefit of statute of limitations: Id. One buying city lot, according to plat showing a street bounding the lot,cannot, by adverse possession or claim Affidavits. 21 Adverse Possession (continued). under previous title, acquire a right to the land em- braced in such street: Moore v. City of Walla Walla, 2 W. T. 184. Adultery. See Divorce. Afiidavits. See Pleadings; Summons. Aflidavits in support of motion for leave to file answer cannot bo heard on appeal from default: Cain v. Harden, 1 Or. 3C0. Counter-afiidavits may be filed on application to set aside decree under section 57 of Code (sec. 58, Hill's A. L.): Smith V. Smith, 3 Or. 363. Aflidavit in support of cross-motion for leave to perfect appeal should be filed before motion comes on for hear- ing: Cross v. Chichester, 4 Or. 114. Of sureties on undertaking on appeal must be filed contem- poraneously with undertaking: llolcomb v. Teal, 4 Or. 352; Aiberson v. Mahafi'ey, 6 Or. 412; State v. McKin- more, 8 Or. 207. Upon affidavit of inability to pay, a party will not be re- quired to pay trial fee: Bailey v. Frush, 5 Or. 136. Aflidavit for immediate delivery in replevin no part of the pleadings: Moser v. Jenkins, 5 Or. 447. Aflidavits are not admissible to impeach a record show- ing appearance and answering: Cauthorn v. King, 8 Or. 138. Affidavit for attachment need only state the ultimate facts: Crawford v. Roberts, 8 Or. 324. Counter-affidavit in proceeding for contempt is not a plead- ing, but is evidence merely, and may be rebutted with- out replication: State v. McKinnon, 8 Or. 487. Aflidavit in support of motion for an order to abate a nuisance is a part of the judgment roll and transcript on appeal from such order: Ankeny v. Fairview filling Co., 10 Or. 300. Affidavit for immediate delivery in replevin is jurisdic- tional to the order: State v. Bacon, 13 Or. 144. Such aflidavit, if in Justice's Court, should be indorsed by justice, and not by plaintiff, directing the officer, but if not so done, the error is not fatal: Id. Affidavit for continuance should state the facts on which belief that witness can be had at the next term is ibunded: State v. O'Neil, 13 Or. 183. 22 Affidavits. AflB.davits (continued). Proof of service of personal process by publication may be made by affidavit: Garrison v. Chceney, 1 W. T. 489. A master in chancery is not authorized to make such oath: Id. Whether absence of venue in an affidavit sworn to before a justice of the peace is fatal, quaere: McCoy v. Ayres, 2 W. T. 203. Admissions. See Evidence; Pleadings; Summons. Agency. See Admiralty; Common Carriers. Principal must adopt or reject acts of agent as an entirety: Coleman v. Stark, 1 Or. 115. Deputy or agent must transact business in name of prin- cipal: Dennison v. Story, 1 Or. 272. Wife is deemed agent of her husband in receiving money from sale of her separate property under foreclosure of his mortgage thereon, and though she had notice of the same, she is not estopped: Fahie v. Pressey, 2 Or. 23. Not sufficient to declare in a deed that it is executed for and in behalf of principal; it must be executed in the name of the principal: Eagle Woolen Mills Co. v. Monteith, 2 Or. 277. Principal liable for injury by firing gun by agent, though done not as directed: Oliver v. N. P. T. Co., o Or. 84. Agent alone liable where he abandons his principal's business entirely; but not when he docs the business, though not in accordance with his orders: Id. Agent liable on contract unless plaintiff had notice of agency; burden is on agent to show that plaintiff had such notice: McCall v. Elliott, 3 Or. 138. Agent in possession of land for principal has not such possession as to be liable for rent under statute: Stewart V. Perkins, 3 Or. 508. Minor son as agent for parent in contracting debts: Carney V. Barrett, 4 Or. 171. Agent of railroad company, charged with the duty of locating the line of tlie road, cannot, for consideration moving to himself, agree on selecting particular route, regardless of the interest of his principal: Holladay v. Davis, 5 Or. 40. Corporations are bound l)y the simple contracts and acts of agents in their ordinary duties: Fink v. Canyon Road Co., 5 Or. 301. Agency, 23 Agency (continued). President of railroad, authorized generally as financial agent, has no power to execute chattel mortgage on a locomotive under corporate seal: Luse v. Isthmus Transit R'y Co., G Or. 125. Agent may testify in what capacity and for whom he was acting, whether as agent for one or another: Bennett v. N. P. Ex. Co., 12 Or. 49. Person signing his name to note, adding simply " Pres.," or "Sec," is personally bound: Guthrie v. Imbrie, 12 Or. 182. But where president and secretary of a corporation so sign and aflix the seal bearing the company name, it is pre- sumed the intention is to bind the corporation: Id. Between the parties to the note, where there is uncertainty on its face, semhle, that parol evidence is admissible to fix liability of principal: Id. Agent buying land from distant principal, without disclos- ing better oft'er previously received, takes advantage of his relation, and the deed will be set aside on repay- ment of price: Savage v. Savage, 12 Or. 459. Agent taking mortgage in his own name binds principal by his default in a suit to foreclose a prior lien, al- though subsequently he assigns the mortgage to his principal: Watson v. Dundee M. & T. I. Co., 12 Or. 474, Existence of agent's authority is a question of fact; what he may do by virtue thereof is a question of law: Glenn v. Savage, 14 Or. 567. The question whether an agent is duly authorized is not a question for the jury: Id. Master cannot act as agent of shipper and owner of vessel at same time: Gove v. Moses, 1 W. T. 7. But may act as agent of shipper after his duty as master ceases: Id. — Wharfinger to whom ship delivers goods, with instruc- tions not to pass them to consignee till the payment of freightage, is agent of the ship: Williams v. Steamship Columbia, 1 W. T. 95, Agent selling logs for principal, permitting purchasers to scale them, instead of employing official scaler, is guilty of negligence, and liable to principal for loss by incor- rect measurement: Crawford v. Cockran, 2 W. T. 117. 24 Agency. Agency (continued). Principal knowing of supplemental proceedings against agent, wherein goods of principal are sought to be held for agent's debt, must intervene, or he cannot complain if loss ensue: Murne v. Schwabacher Bros. & Co., 2 W. T. 192. Aliens. See Indians; Public Lands; Treaties. Alimony. See Divorce. Alteration of Instruments. See Bills and Notes; Eras- ures. Adding the words " in gold coin " to note is material al- teration: Wills V. Wilson, 3 Or. 308. When makers liable on joint note so altered; notice; rati- fication: Id. Alteration of note by stranger, with intent to cancel the note, raises no presumption of payment: Whitlock v. Manciet and Bigne, 10 Or. 166. Alteration of instrument under seal after delivery has been consummated avoids the instrument: Walla Walla Co. V. Ping. 1 W. T. 339. Where a penal sum is not in bond when signed by sure- ties, and is subsequently and after the bond passes from their control inserted, they are not liable: Id. They are not estopped from denying their liability, al- though the bond has been accepted without knowledge of the alteration : Id. Alterations in deed after signed and sealed, and after it passes from control of maker, render the deed void, un- less maker afterward in due form assents: Id. Alterations after signing, but before leaving control of grantor, do not render the deed void, the maker being estopped: Id. Authorities, to the effect that alterations in a sealed instru- ment may be authorized by parol to be altered, re- viewed, and shown to be a departure from the ancient and generally accepted rule of law: Id. Amendments. Sec Judgments^ Pleadings; Records; Sum- mons. Animals. See Estrays; Common Carriers; Fences; Lost Property; Trespass. Owner of domestic animal not liable for injury resulting from its vicious disposition unless he is chargeable with notice of its disposition: Dufcr v. Cully, 3 Or. 377. Answers and Defenses. 25 Animals (continued). Rule does not apply, however, in case of trespass qunre clausnm fregit: Id. Taking cattle from the range, branding them, and return- ing them, apparently in good faith, believing them with- out owner, raises no presumption of criminal intent: State V. Swayze, 11 Or. 357. Natural marks on cattle, though serving to identify them, are not marks of ownership: Id. Answers and Defenses. See Pleadings; Recoupment; Set-offs and Counterclaims. 1. Denials. 2. In General. 3. In Particular Cases. 1. Denials. Specific denial of all allegations in a complaint denies right of action: Bailey v. Warren, 1 Or. 357. What is sufficient denial of information and belief: Rob- bins v. P>aker, 2 Or. 52; Sherman v. Osborn, 8 Or. 66; Wilson V. Allen and Lewis, 11 Or. 154. When denial of corporate existence is abatement, and when bar: Oregon Central R. R. Co. v. Wait, 3 Or. 91; Oregon Central R. R. Co. v. Scoggin, 3 Or. 161. Denial that plaintitf corporation is duly organized raises no issue: Oregon Central R. R. Co. v. Scoggin, 3 Or. 161. Denial that property is of the exact value alleged is an admission of any less value: Scovill v. Barney, 4 Or. 288. Conjunctive allegation must be denied disjunctively: Id. Allegation that D. made, executed, and delivered note, not put in issue by denying that he delivered it: Cogswell V. Ilayden, 5 Or. 22. Denial that it was transferred " for value received," and denial of indebtedness, raise no issue: Id. ^^ No issues can be raised by conjunctive and literal de- nials: Moser v. Jenkins, 5 Or. 447; City of Seattle v. Buzby, 2 W. T. 25. Denial of work performed, in an answer pleading a special defense which admits it was done, raises no issue: Lung Louis & Co. v. Brown, 7 Or. 326. A denial of knowledge where information can be had by inspection of records is sham: Wilson v. Allen and Lewis, 11 Or. 154. 26 Answers and Defenses. Answers and Defenses (continued). Denial of reasonableness of attorney's fee, alleged in ac- tion on a note, raises an issue to be tried: Cowles v. Doble, 11 Or. 474. Denial in manner and form admits the allegation: City of Seattle v. Buzby, 2 W. T. 25. Allegation that " each and every of four separate causes of action set forth in the complaint did not accrue within six years," contains a negative pregnant, and need not be denied: Gammon v. Dyke, 2 W. T. 26(3. 2. In General. In an answer in confession and avoidance, new matter must be so stated as to amount to complete bar: Good- win V. Barnhart, 1 Or. 215. In abatement must be pleaded separately, and disposed of before answer to merits: Ilopwood v. Patterson, 2 Or. 49. Defense of pendency of former suit for same cause must show suit still pending: Id. A supplemental answer in the nature of a plea 2'>uis dar- rein cnntinunnce does not waive former pleas, usually: Hamlin v. Chapman, 2 Or. 91. Amendment of Code, allowing equitable defenses in ac- tions at law, is a radical change: Delav v. Chapman, 2 Or. 242. Pleading former suit as a bar must show facts as to what matter was therein determined: Ileatherly v. Iladley, 2 Or. 2G9. Evidence must not be set up in or made part of answer: White v. Allen, 8 Or. 103. Essential to equitable defense that defendant has no legal defense: Id. Abatement pleaded with matter in bar will be stricken out on motion: Oregon Central R. R. Co. y. Scoggin, 3 Or. 101. Not all facts constituting defense will afibrd equitable aflirrnative relief: Kennard v. Sax, 3 Or. 263. Answer must not be contradictory; admissions in such answer are binding: Foren v. Dealey, 4 Or. 92. Answer uhicli puts in issue the ultimate facts is sufficient: Id. Must be false and pleaded in bad faith to be stricken out as sham: Id. Answers and Defenses. 27 Answers and Defenses (continued). Defense that plaintiff is not the real party in interest must be pleaded in abatement, and otherwise cannot be taken advantage of after going to trial on the merits: Derkeny v. Belfils, 4 Or. 258. When an answer in an action at law sets up a complete legal defense, a cross-bill in equity cannot be fded un- der section 377 of the Code (sec. 381, Hill's A. L.): Dolph V. Barney, 5 Or. 193; Scheland v. Erpelding, 6 Or. 258. Doctrine of parol demurrer is not recognized in Oregon: English V. Savage, 5 Or. 518. Where a defendant has no plain, adequate, and complete remedy at law, an equitable defense may be pleaded by cross-bill, although the facts so pleaded constitute but a partial defense to the action at law: Hatcher v. Briggs, 6 Or. 31. Failure to plead equitable defense by cross-bill does not preclude filing original bill: Hill v. Cooper, G Or. 181. Estoppel, as a defense, must be pleaded to be available: Rugh v. Ottenheimer, G Or. 231. Manner of pleading estoppel as a defense: Page v. Smith, 13 Or. 410. Irregularity in counterclaim not demurred to, unless jurisdictional, is waived by reply: Scheland v. Erpeld- ing, 6 Or. 258. Inconsistent defenses may be pleaded in same answer in real actions: Moore v. Willamette T. & L. Co., 7 Or. 355. Pleading which is but a repetition of former one adjudged insufficient is frivolous: Farris v. Hayes, 9 Or. 81. Informal statement of facts in answer cured by verdict: Houghton and Palmer v. Beck, 9 Or. 325; Andros v. Childers, 14 Or. 447. Where one pleads jointly with other defendants facts^on- stituting defense for himself alone, objection must be made before trial that he should have answT^red sepa- rately: Brown & Co. v. Rathburn, 10 Or. 158. Matter not constituting complete defense may be pleaded in mitigation of damages, but nmst be pleaded as a partial defense: Webb v. Nickerson, 11 Or. 382. On filing an amended answer, a former one and all mo- tions and demurrers relating thereto are abandoned, 28 Answers and Defenses. Answers and Defenses (continued). and cease to be a part of the record reviewable on ap- peal: Wells V. Applegate, 12 Or. 208. Answer must set forth defense with the same precision and accuracy required in a complaint: Meeker v. Wren, 1 W. T. 73. Matters of defense must be stated with particularity and definiteness: Roeder, Peabodv, & Co. v. Brown, 1 W. T. 112. Answer admitting allegations of complaint with qualifica- tions, the plaintiff is not relieved from proving the allegations qualified by the answer: Breemcr v. Burgess, 2 W. T. 290. Afiirmative matter in answer which in effect amounts to but a denial of complaint, adds nothing to the issue made by the denials: P. S. I. Co. v. Worthington, 2 W. T. 482. Defendant denying contract alleged, it is irrelevant to set forth the contract he claims he did make: Id. 3. In Particular Cases. Defense of the statute of limitations must be set up as new matter, unless the fact appears on the face of the complaint: Steamer Senorita v. Simonds, 1 Or. 274. Answer held not sufficient in an action on forthcoming bond: Norton v. Winter, 1 Or. 97. Answer that the suit did not accrue within six years is sufficient on demurrer where the period of statutory limitation is five years: Baldro v. Tolmie, 1 Or. 170. Answer to petition for mandamus may not raise issues of ultimate right to office: Warner v. Myers, ?> Or. 218. Coverture, in suit against wife alone, when bar and when abatement: Kennard v. Sax, 3 Or. 263. In action of ejectment, defendant claiming undivided in- terest must specify what interest he claims: Pease v. Hannah, 3 Or. 301. In action on general warranty in deed, defendant cannot set up that th(^ warranty was intended to apply to jiart of prcmisos: Taggart v. Risley, 3 Or. 300. In action for wages, defense that plaintiff did not work diligently must be pleaded: Albee v. Albee, 3 Or. 321, What is a sufficient plea of the statute of limitations of another state: Crawford v. Roberts, 8 Or. 324. Answers and Defenses. 29 Answers and Defenses (continued). Payment cannot be pleaded as a counterclaim, but may- be proved under a general allegation of payment: Hendrix v. Gore, 8 Or. 406. Lack of funds to repair is matter of defense, in action against city officers for injury by defective bridge: Rankin v. Buckman, 9 Or. 253. * Final settlement between partners as a defense to bill for an accounting must be pleaded: Gleason v. Van Aernam, 9 Or. 343. Right of defendant in foreclosure suit to answer co- defendants: Ladd and Tilton v. Mason, 10 Or. 308. An unexecuted agreement to arbitrate is no defense to an action on a contract: Savage v. Glenn, 10 Or. 440. Equitable rights, estates, or estoppel cannot be pleaded as defenses in action of ejectment: Newby v. Rowland, 11 Or. 133. In an action against a sherilff for conversion, answer justifying under seizure on attachment must allege that the attachment debtor was the owner of the prop- erty: Krewson v. Purdom, 11 Or. 2GG. Answer in justification in action for conversion in seizing of property by Indian agent must allege that person in possession was a white person or Indian: Webb v. Nickerson, 11 Or. 382. In answer alleging deceit, the pleader must show wherein the representations were false, — must allege facts, not conclusions: Specht v. Allen, 12 Or. 117; Misner v. Knapp, 13 Or. 135. In all actions in the nature of trespass, justification as a defense must be specially pleaded: Gee v. Culver, 12 Or. 228; Konigsberger v. Harvey, 12 Or. 286. But aflirmative matter not amounting to justification may be joined to a denial, and need not be pleaded separately: Konigsberger v. Harvey, 12 Or. 286. ^^ In divorce, admission of the charge, in centain cases under the statute, to show in bar that the suit has not been commenced within a year, must be by answer, and not merely by demurrer: Rice v. Rice, 13 Or. 337. In conversion, plea of title in a. third person is not new matter: Krewson & Co. Purdom, 13 Or. 563. 30 Answers and Defenses. Answers and Defenses (continued). But quserc, whether such fact can be proved under mere denial of plaintiff's title: Id. In replevin a claim of possession by virtue of a special property must be pleaded as new matter, and cannot be shown under denial of plaintiff's right: Guille v. Wong Fook, 13 Or. 577. Semhle, that under general issue plaintiff may prove ab- solute ownership in liimself or third person: Id. Statute of another state relied on as a defense must be pleaded: Balfour v. Davis, 14 Or. 47. Answer charging fraud and misrepresentation as a de- fense in a suit on a contract of guaranty under seal, held insufficient in law: Marx v. Schwartz, 14 Or. 177. Answer setting up conditional contract of sale unful- filled, as defense on promissory note for purchase price, must show an offer to reconvey: Kenworthy v. Merritt, 2 W. T. 155. Appeal and Error. See Pleadings; Practice j Review, Writ of. 1. Nature and Right. 2. Notice of Appeal. 3. Precipe and Assignmen-j of Errors. 4. Notice of Error. 5. Bill of Exceptions and Statement. 6. Undertaking. 7. Transcript and Record. 8. Effect. 9. Dismissal. 10. Practice. 11. Errors and Questions Considered. 1. Nature and Right. Lies from dccieion of commissioners to District Court on contest al)out a ferry: Carothers v. Wheeler, 1 Or. 194. The granting or refusing motion for a new trial is not a final order from which appeal or writ of error lies: Bowen v. State, 1 Or. 270; State v. Fitzhugh, 2 Or. 227; State V. Wilson, 6 Or. 428; Ilallock v. City of Portland, 8 Or. 29; State v." McDonald, 8 Or. 113; State v. Drake, 11 Or. 390; State v. Mackey, 12 Or. 154; Kearney v. Snodgrass, 12 Or. 311; State v. Becker, 12 Or. 318; Tucker v. Flouring Mills Co., 13 Or. 28; Wassissimi v. Appeal and -^Error, 31 Appeal and Error (continued). Territory, 1 W. T. 6; Smith v. United States, 1 W. T. 262; McCormick v. W. W. & C. R. R. R. Co., 1 W. T. 512; Jones v. Wiley, 1 W. T. G03; Page v. Rodney, 2 W. T. 4G1. In absence of fixed time to take appeals from land-oflQce to general land-office of United States, party entitled to reasonable time and no more: Moore v. Fields, 1 Or. 317. Lies in all cases from final decisions of Justice's Courts and County Courts: Blanchard v. Bennett, 1 Or. 328. Appeal and review are concurrent remedies: Id.; Shirott V. Phillippi, 3 Or. 484; contra, Evans v. Christian, 4 Or. 375; Sellers v. City of Corvallis, 5 Or. 273; Ramsey v. Pettengill, 14 Or. 207; Summers v. Harrington, 14 Or. 480. But are concurrent remedies to vacate a void judgment. rendered by a justice of the peace: Prickett v. Cleek, 13 Or. 415.' From County Court, no other issues than those heard be- low can be tried: Cain v. Harden, 1 Or. 3G0. Does not lie from judgment by default: Ryan v. Harris, 2 Or. 175. Nor from justice's judgment less than twenty dollars, though the amount in controversy be greater: Stoll v. Iloback, 2 Or. 225. Nor from order of Circuit Court refusing leave to bring action against a private corporation: State v. Oregon Central R. R. Co., 2 Or. 255. Order partially removing cause to United States court not reviewable: Fields v. Lamb, 2 Or. 340. Such order does not affect a substantial right, or prevent judgment within section 525 of the Code (sec. 535, Hill's A. L.): Id. Does not lie to Circuit Court from decision of register of state lands, La Grande district: Anderson v. Laughery, 8 Or. 277. No appeal from judgment for want of an answer: Fass- man v. Baumgartner, 3 Or. 409; Smith v. Ellendale Mill Co., 4 Or. 70; Trullenger v. Todd, 5 Or. 36. Order assigning custody of minor children in divorce case is appealable: Pittman v. Pittman, 3 Or. 472. Appeal involves trial of fact and law; review, questions of law only: Schirott v. Phillippi, 3 Or. 484. 32 Appeal and Error. Appeal and Error (continued). After expiration of time to appeal from a justice's judg- ment, the right to review still exists: Id.; Evans v. Christian, 4 Or. 375; Sellers v. City of Corvallis, 5 Or. 273; but this is not the rule as to judgments of the County Court: Broback v. HutF, 11 Or. 395; and is expressly overruled as to justice's judgments: Ramsey V. Pettengill, 14 Or. 207; Summers v. Harrington, 14 Or. 480. Judgment for want of answer, wben rendered without jurisdiction, maybe appealed from: Smith v. Ellendale Mill Co. 4 Or. 70; Trullenger v. Todd, 5 Or. 36. Decision of Circuit Court as to costs may be reviewed on appeal: Cross v. Chichester, 4 Or. 114. Party cannot accept judgment, and enter satisfaction, and then appeal from it: Moore v. Floyd, 4 Or. 260; Lyons V. Bain, 1 W. T. 482. Purchaser at void administrator's sale has no right of ap- peal from order of sale or confirmation: Levy v. Riley, 4 Or. 392. A judgment, although void, may be appealed from: Trul- lenger V. Todd, 5 Or. 36. Order, to be appealable, must not only affect a substantial right, but terminate the action: State v. Brown, 5 Or. 119. Lies from judgment of city recorder of Corvallis to Circuit Court: Sellers v. City of Corvallis, 5 Or. 273; City of Corvallis v. Stock, 12 Or. 391. Term appointed by order of Supreme Court is a regular term within the statute of appeals: Moore v. Pack wood, 5 Or. 325. From city council of Portland, in laying out streets, to Circuit Court, must be taken from the whole judgment, and the trial is de novo: City of Portland v. Kannu, 5 Or. 362. Appeal, mandamus, or writ of review are the proper means by which Circuit Court exercises supervisory control over County Covirt, and not injunction: Road Co. v. Douglas Co., 5 Or. 373. Docs not lie from justice's judgment rendered after strik- ing out answer, defendant refusing to plead: Long v. Sharp, 5 Or. 438. Appeal and Error. 33 Appeal and Error (continued). On death of party, his representatives cannot appeal until they luive obtained an order allowing continuance in their names: Dick v. Kendall, 6 Or. 166. Between time of death and allowance of such order, suit IS suspended, and such period is not deemed any part of the time for taking appeal: Id. Party may voluntarily pay the judgment and then appeal: Edwards v. Perkins, 7 Or. 149. Abandonment of appeal, after serving notice thereof, does not preclude appellant from appealing again within the time limited for taking appeals: Holladay v. Elliott 7 Or. 483. Appeal does not lie from order made by County Court in transacting county business: Mountain* v. Multnomah County, 8 Or. 470. Does not lie from judgment of city recorder of La Payette when rendered in a city case: Town of La Fayette v Clark, 9 Or. 225. Final order in administration proceedings having been duly entered, cannot, by order at subsequent term, be so amended that appeal will lie from the latter order after time for appealing from the original order has expired: Harvey's Heirs v. Wait, 10 Or. 117; but see Lee v. Im- brie, 13 Or. 510. Where the parts of a decree are severable, a party ma^ accept the portion favorable to him, and issue execu- tion thereon, and appeal from the remainder: Inverarity V. Stowell, 10 Or. 261. Appeal lies from order of confirmation of sheriff's sale: Dell V. Estes and Carter, 10 Or. 359. To review a judgment awarding costs, appeal from the judgment is proper; but where it is sought to review erroneous taxation of costs, appeal should be taken^om the determination settling the amount thereof: Burt v. Ambrose, 11 Or. 26. Lies only when the controversy as to all parties to the action has been finally determined: Watkins v. Mason 11 Or. 72. ' Lies from order dissolving or refusing to dissolve attach- ment: Sheppard v. Yocum, 11 Or. 234; Suffern v. Chisholm, 1 W. T. 486. Ou. Dig.— 3 34 Appeal and Error. Appeal and Error (continued). Does not lie from an order of the Circuit Court on petition for the removal of an assignee of an insolvent: In re Goldsmith, 12 Or. 414. From Justices' Court is means of obtaining right of trial by jury, and practice should be liberal: Hosford v. Logus, 13 Or. 130. Appeal, and not injunction, is the remedy to prevent en- forcing an erroneous judgment for costs: Nicklin v. Hobin, 13 Or. 406. Justice's Code, as to appeals, is complete in itself; and section 527 of the Civil Code (sec. 537, Hill's A. L.) does not apply to appeals from Justices' Courts: Odell V. Gotfrey, 13 Or. 466. Circuit Court acquires no jurisdiction on appeal unless statute is strictly pursued: Steel v. Rees, 13 Or. 428. Where a long time after a final order is entered it is cor- rected by nunc pro tunc order, it seems right of appeal runs from the date of the latter order: Lee v. Imbrie, 13 Or. 510. Appeal and review are concurrent remedies from a void judgment in default: Prickett v. Cleek, 13 Or. 415. On appeal in a forcible entry and detainer case, the un- dertaking for twice the rental value of the premises is a prerequisite on the part of the defendant appealing: Danvers v. Durkin, 14 Or. 37. Decree in partition which determines the rights of the parties and leaves nothing to be done but to carry it into effect by appointment of referees, etc., is final, and appeal lies therefrom: Walker v. Goldsmith, 14 Or. 125 Lies from an order settling and allowing receiver's fees: Martin v. Martin, 14 Or. 165. Appeal from such order is a special proceeding not cov- ered by the general statute relating to appeals, and may be taken under rule 14 of Supreme Court: Id. Decree of divorce is not subject to review, though there be proceedings in the suit that may be reviewed: Madi- son V. Madison, 1 W. T. 60; contra, Tierney v. Tierney, 1 W. T. 568. Appeal lies to Supreme Court of Washington Territory only in the cases specified in section 356, page 199, Laws of 1854: Puget Sound Agr. Co. v. Pierce Co., 1 W. T. 76. Appeal and Error. 35 Appeal and Error (continued). The status of the appellant in the Supreme Court is de- rived from the order of the court below: Id. Provisions of the statute which are preliminary in their character must be complied with, to confer jurisdiction on appeal: Id. No appeal lies from the action of the board of county commissioners in locating county roads, except on the single question of damages: King County v. Neely, 1 W. T. 241. How appeals from board of county commissioners should be taken: Id. Whether appearance of the opposite party, on appeal from the board of commissioners, without making ob- jection, cures irregularities in taking the appeal: Id. Appeal is abolished by section 445 of the Practice Act of 1873, which is confirmed by act of Congress, 1874, though contrary to the Organic Act: Mann v. Young, 1 W. T. 454. By accepting the fruits of a decree, party is estopped from appealing: Lyons v. Bain, 1 W. T. 482. An order dissolving an attachment is a final order from which appeal or writ of error lies: SuflFern v. Chisholm, 1 W. T. 486. "Where such order is made by the judge at chambers and not by the court, the order is void, and cannot be re- viewed by the Supreme Court: Id. When notice of appeal is filed with the justice of the peace and copy served, appeal is taken; but to stay proceedings it is necessary to file a bond and make entry of the allowance of appeal in the justice's docket: Seattle Coal and Trans. Co. v. Lewis, 1 W. T. 488. Right of appeal and the mode of taking the same, under the various codes of Washington Territory: Garri^n v. Cheeney, 1 W. T. 489. Legislature cannot provide for appeal from an order of the District Court granting or refusing new trial: Mc- Cormick v. Walla Walla & C. R. R. R. Co., 1 W. T. 512. The legislature must provide a mode in which the appel- late power of the Supreme Court is to be exercised; McGowun v. Petit, 1 W. T. 514. 36 Appeal and Ereob. Appeal and Error (continued). Divorce act of 1863, forbidding the reversal of any final order of the District Court divorcing parties, is to such extent in violation of the Organic Act and void: Tierney V. Tierney, 1 W. T. 568. Order awarding custody and fixing the allowance for support of a child, in divorce proceedings, is merely interlocutory, and not subject to review: Id. Appeal in equity allowed by the Organic Act is the right to a new trial upon the pleadings and evidence that were before the lower court: Coleman v. Yesler, 1 W. T. 591. Legislature cannot abridge such right, but may prescribe a course to be pursued by the party availing himself of the right given: Id. Legislative enactment requiring party to indicate what part of the proceedings he appeals from, and to define such part, and to make specific statement of what is erroneous, does not in any wise abridge the right to ap- peal, nor destroy the distinction between an appeal and a writ of error: Id. Such statement and specification of error is not based upon the idea that the decision of the lower court is left standing, but is simply a regulation for convenience in procedure: Id. Where the findings of fact made by the trial judge are not as broad as the issues, or are insuflicient, remedy is by motion for further findings, and not by appeal: Eakin v. McCraith, 2 W. T. 112. Under section 453 of the Code, a party to a judgment has full six months within which to decide whether he will appeal: Crawford and Harrington v. Haller, 2 W. T, 161. Construction of the act of 1883 respecting appeals; the act is cumulative and complete, and does not repeal sections 458, 459, and 460 of the Code of 1881; Breemer V. Burgess, 2 W. T. 290. Appeal does not lie from an order granting or modifying a temporary injunction: N. P. R. R. Co. v. W. F. & Co., 2 W. T. 303. Appeals can only be taken from final judgments, orders, and decisions: McCormick v. W. W. & C. R. R. R. Co., Appeal and Error. 37 Appeal and Error (continued). 1 W. T. 512; N. P. R. R. Co. v. W. F. & Co., 2 W. T. 303; Jennings v. Bartels, 2 W. T. 306; Conway v. U. S. of America, 2 W. T. 33G. After giving notice of appeal, and entry thereof on the journal, under the act of 1883, which has the effect of transferring the cause, an appeal cannot be taken under the Code of 1881, because no judgment remains in the District Court: Conway v. U. S. of America, 2 W. T. 336. In the absence of joinder of a co-party in the appeal, or his appearance, or notice served upon him, the Supreme Court is not invested with jurisdiction of the cause: Parker v. Denny, 2 W. T. 360. If case be dismissed for want of transcript, another writ of error may be prosecuted within the time allowed by law: Roberts and Iloyt v. Tucker, 1 W. T. 179. Ruling of District Court on a motion to vacate final judg- ment is not itself a final judgment reviewable on writ of error: Hancock v. Stewart, 1 W. T. 323. After expiration of the time for taking writ of error, juris- diction cannot be had in the Supreme Court, even with consent of tlic parties: Stark v. Jenkins, 1 W. T. 421. Manner of transferring cases to the Supreme Court is en- tirely statutory: Lytle v. Territory, 1 W. T. 435. Except in case provided for in section 445 of the Practice Act of 1873. a final determination of the District Court must be taken to the Supreme Court by writ of error: Mann v. Young, 1 W. T. 454. Repeal of Code of 1871, and adoption of writ of error under the statutes of 1873, operates to require proceed- ings, in cases where time for appeal had not expired before the adoption of the Code of 1875, to be in accord- ance with the latter Code: Garrison v. Cheeney, 1 \\^T 489. Writ of error need only be prosecuted in the name of the party aggrieved by the decision of the lower court: Id. Under the provisions of the Code of 1881, an action at law cannot be reviewed in the Supreme Court by ap- peal, but must be brought by writ of error: Wilson v. Wald and Campbell, 2 W. T. 376. 38 Appeal and Error. Appeal and Error (continued). 2. Notice of Appeal. a. The Notice. Notice, and certificate of attorney therein to the existence of error, not amendable: Dolph v. Nickum, 2 Or. 202. Where notice of appeal from Justice's Court specified jurl^ment for $57.75, and transcript $52.50, appeal dis- missed: Chipman v. Bronson, 3 Or. 320. Need not specify errors relied on in criminal case; rule adopted requiring statement on demand: State v. Ellis, 3 Or. 497. Certificate of attorney in notice of appeal must not only allege errror, but state in what particulars the judgment is erroneous: Fulton v. Earhart, 4 Or. Gl. Notice of appeal from a decree need not specify grounds of error: Lewis v. Lewis, 4 Or. 209. Requisites of notice of appeal: Id.; Christian v. Evans, 5 Or. 253; Oliver v. Harvey, 5 Or. 360; Weiss v. Jackson County, 8 Or. 529; Luse v. Luse, 9 Or. 149; Noppach v. Jordan, 13 Or. 246. Parties cannot waive notice so as to give appellate court jurisdiction: Oliver v. ILirvey, 5 Or. 360; Wolf v. Smith, 6 Or. 73. No notice appearing in the transcript, the court has no jurisdiction notwithstanding parties appear: Wolf v. Smith, 6 Or. 73. No error not specified in notice considered, except lack of jurisdiction appearing in the record: McKay v. Free- man, 6 Or. 449; State v. McKinnon, 8 Or. 487; Weiss- man V. Russell, 10 Or. 73. " Tliat the court rendered judgment on the verdict." is a sudicient specification of an alleged error in the form of the verdict: Jones v. Snider, 8 Or. 127. *' Decision and judgment are against law," — too indefinite a specification of error: State v. McKinnon, 8 Or. 487. Notice of appeal to the Supreme Court must be signed by attorney of record, and cannot be signed by appellant himself: Tojjpk'ton v. Nelson, 10 Or. 437. Change of attorneys, not subsLituted of record, does not alter this requirement: Id. "Admitting or excluding testimony as shown by the bill of exceptions," is too iudeliuite a specification of error: Appeal and Error. 39 Appeal and Error (continued). N. P. Terminal Co. v. Lownbcrg, 11 Or. 286; contra, Krewpon & Co. v. Purdom, 13 Or. 563. Kotice of appeal in proceedings supplemental to execution must specify errors relied on: Williams v. Gallick, 11 Or. 337. Sufficiency of notice must appear on its face; court can- not inquire whether in fact it gives respondent notice: Neppach v. Jordan, 13 Or. 246. For the possession of the premises described in the com- plaint,"— sufficient description of the judgment and the premises in the notice: Id. A notice is sufficient in which the essential facts required in a notice may be made out by reasonable intend- ment: Id. • 1 u Misdescription of date of judgment in notice is waived by appearing and obtaining continuance: Moorebouse v. Donica, 13 Or. 435. On appeal from Justice's Court, notice which makes known that an appeal is taken in the particular case is sufficient: Lancaster v. McDonald, 14 Or. 264; Starks v. Staflbrd, 14 Or. 317. In such appeal, a notice which names the plaintiff, Amanda H. Starks, as "A. 11. Starks," is sufficient: Starks v. Stafford, 14 Or. 317. In case of appeal, a specification of errors claimed to have been committed is necessarily similar to that which constitutes the assignment of errors, in a suit in error: Coleman v. Yesler, 1 W. T. 591. Notice of appeal and notice in case of error do not neces- sarily assume the same form: Parker and Boyer v. Dennev, 2 W. T. 176. The one" contains a particular description of the errors assigned; the other contains a specific list of injurious rulings, order, or decisions: Id. The object of l)oth is to narrow the range of controversy and to apprise the opposite party and the appelhito court of its intent: Id. At common law, an assignment of error is a pleading whose allegations are to be tested by the record, and the statutory notice is essentially the same: Id. 40 Appeal and Error. Appeal and Error (continued). A notice of appeal is not in the nature of a pleading, but rather of an election, but the same rules of brevity and simplicity should apply: Id. Suliicicnt in notice of appeal to state that appellant has been aggrieved by the orders, rulings, and decisions fol- lowing, and then severally enumerate them by descrip- tions sufficient to identify each: Id. Giving of notice of appeal and the entry of the same in the journal of the trial court, under the act of 1883, has the effect of transferring the cause to the Supreme Court: Meeker v. Gardella, 2 W. T. 355. If a co-party does not join an appeal or voluntarily ap- pear in the Supreme Court, he must be served with a notice of appeal provided by statute: Parker v. Denny, 2 W. T. 360. Notice of an intention to appeal is not notice of an appeal actually prosecuted: Id. AVhen notice of appeal is entered in the record of the Dis- trict Court prior to the order sought to be appealed from, both being in the records of the same day, the presumption is, tliat the judgment* has been first en- tered: P. S. I. Co. V. Worthington, 2 W. T. 472. 6. Service and Return. Where last day falls on Sunday, service may be made on Monday following: Carothers v. Wheeler, 1 Or. 196. It must appear that the notice was served on the party or his attorney, and filed: Strang v. Keith, 1 Or. 312. On appeal, return of service of notice may be amended: Dolph V. Nickum, 2 Or. 202; Sceley v. Sebastian, 3 Or. 563. In the county, service of notice may be on the party or his attorney; outside of county, on party only: Lindley V. Wallis, 2 Or. 203; Rees v. Rees, 7 Or. 78. When service is made by leaving at office or residence, return nmst show that it was left between the hours fixed by statute: Rees v. Rees, 7 Or. 78. Manner of such service may be in accordance with title 3, page 278, of Code (p. 469, Hill's A. L.): Id. Notice of appeal from justice's decision may be served on the party or his attorney, if residing in the county: Carr v. Hurd, 3 Or. 160. Appeal and Error. 41 Appeal and Error (continued). Service and return in criminal case; service when re- spon(]ent is not a resident of county: State v. Brown, 5 Or. 119. Proof of service in the form of an indorsement must be on the notice when filed, or appeal is not perfected: Briney v. Starr, G Or. 207. Subsequent making or amendment of such proof can only be done in the court below after leave: Id. Presumed that service was made within the county of the sheriff making the return: Roy v. Horslcy, 6 Or. 270. Presumed that the attorney served was resident of the county where he was served and practicing: Id. Service and return of notice of appeal from a Justice's Court may not be made by the appellant himself: Saunders v. Pike, 6 Or. 312; Gee v. McMillan, 14 Or. 270. Service on attorney can be made only when he is a resi- dent of the county: Rees v. Rees, 7 Or. 78. On appeal from Justice's Court in criminal case, service must be made on district attorney or private prosecutor: State V. Zingsem, 7 Or. 137. Service on non-resident by serving on the clerk is suffi- cient, although the attorney for the respondent, residing in another county, may know respondent's residence: Holladay v. Elliott, 7 Or. 483. Service of the notice must precede filing the undertaking, and simply refiling the latter after is insufficient: Weiss V. Jackson County, 8 Or. 529. Service by constable must show that the notice was served in his precinct: Sloper and Kelso v. Carey, 9 Or. 511. County clerk cannot accept service and waive copy of no- tice for the county as respondent: Read v. Beaton County, 10 Or. 154. ^ Mistake of constable in not serving notice of appeal does not excuse appellant: Scoggin v. Hall, 12 Or. 372. On appeal from Justice's Court, notice need not be served on the attorney: Byers v. Cook, 13 Or. 297. Objection to suUiciency of service of notice of appeal from Justice's Court must be taken in the Circuit Court, or will not be considered in the Supreme Court: Lancaster V. McDonald, 14 Or. 2G4. 42 Appeal and Error. Appeal and Error (continued). Service of notice of appeal on the clerk of the District Court is essential in order to confer jurisdiction upon the Supreme Court: Blinn v. Crosby, 2 W. T. 109. 3. Precipe and Assignment of Errors. Where precipe directs notice to issue to the adverse party to appear at a term subsequent to the next term follow- ing the filing of the precipe, no appeal is taken, and on motion case should be dismissed: Roberts and Hoyt v. Tucker, 1 W. T. 179. There being no precipe, and the record affording a court no "means of deciding whether error was committed, judg- ment is affirmed: Miskel v. Stone, 1 W. T. 229. Act of 18G5 required that a precipe perform the functions of a precipe, and also those of the paper called assign- ment of errors under the act of 1862: MciVimond v. Adams, 1 W. T. 230. The particularity of statement in a precipe is analogous to the particularity of statement of a cause of action in a complaint in the lower court: Id. What particularity of description of errors is required in precipe: Id. Mere classification of errors, as in this case, not sufficient: Id. Specific errors must be pointed out and individualized by a description in the precipe: Id. This particularity of description must be contained in the precipe without the aid of the transcript: Id. Motion for leave to amend precipe by assignment of errors, where none are assigned in the court below, should be denied: Shorcy v. Wyckoff, 1 W. T. 348. Precipe nmst contain a particular description of the judg- ment to correct which the writ of error is sued out: Carr v. King County, 1 W. T. 418. In suing out a writ of error, no assignment of errors can be made except in the precipe: Lytic v. Territory, 1 W. T. 435. Precipe for a writ is analogous to a complaint in the Dis- trict Court, while' a notice thereof to be served on the adverse party or his attorney stands in place of a sum- mons: Schwabachcr v. Wells, 1 W. T. 500. Appeal and Error. 43 Appeal and Error (continued). By means of the former, jurisdiction is acquired of the sub- ject-matter, and of ttie person by the latter: Id. Needless and superfluous assignment of error tends to confusion, and is in effect no assignment, and would justify the court in affirming the judgment of the lower court as for want of proper assignment of errors: Brew- ster V. Baxter, 2 W. T. 135. No assignment of errors is contemplated under the act of 1883 other than may be required by a rule of the Su- preme Court: Breemer v. Burgess, 2 W. T. 290. Rule 5 of the Supreme Court requires service of assign- ment of errors under said act: Collins v. Citv of Seattle, 2 W. T. 354; Parker v. Dacres, 2 W. T. 362; Brown v. Hazard, 2 W. T. 464. There being no assignment of errors in a legal action, the appeal should be dismissed: Brown v. Hazard, 2 W. T. 464. Party who has failed to make an assignment of errors pertaining to his legal defense cannot have matters growing out of an equitable defense heard in the Su- preme Court: Id. 4. Notice of Error. Notice of suing out writ of error under statutes of 1869 must be to the adverse party; notice directed to the at- torney insufficient: Driver v. McAllister, 1 W. T. 367. Acknowledgment of such notice not good unless it dis- closes time, place, and manner of service: Id. Imperfect indorsement of signature of attorney to said notice, accepting service thereof, may be made perfect by aid of the record: Id. Service of notice of taking writ of error upon A. Phinney does not well show a service upon the defendant Arthur Phinney: Waterman and Katz v. Phinney, 1 \V. T. 415. The return should show that service was had In tlie county of the sheriff niaking service: Id. ♦ Precipe for a writ is analogous to a complaint in the Dis- trict Court, while a notice thereof to be served on the adverse party or his attorney stands in place of a sum- mons: Schwabacher v. Wells, 1 W. T. 506. By means of the former, jurisdiction is acquired of the subject-matter and of the person by the latter: Id. 44 Appeal and Error. Appeal and Error (continued). Defective service of the notice is waived by appearance: Id. Acknowledgment of the clerk of the lower court, under seal, of the service of a notice of writ of error required to be served on him, is not proof of service, nor does such acknowledgment constitute color of service: Port Blakeley Mill Co. v. Clymer, 1 W. T. 607. The return of the officer or the affidavit of the party mak- ing the service affords the proof provided by statute, and unless the record shows such proof, or there be waiver, the court has no jurisdiction: Id. Kotice of appeal and notice in case of error do not neces- sarily assume the same form: Parker and Boyer v. Denney, 2 W. T. 176. The one contains a particular description of the errors assigned; the other contains a specific list of injurious ruling, orders, or decisions: Id. The object of both is to narrow the range of controversy, and to apprise the opposite party and the appellate court of its extent: Id. At common law an assignment of error was a pleading whose allegations were to be tested by the record, and the statutory notice is essentially the same: Id. In suing out writ of error in criminal cases, where service on the United Sta'tes is necessary, the United States attorney is the only person on whom service can be made, and service on his assistant will not avail: Ben- nett v. United States, 2 W. T. 179. 5. Bill of Exceptions and Statement. Bill of exceptions must be signed and sealed by the judge, and be part of the record: Thompbou v. Backenstos, 1 Or. 17. Omission of clerk to file the bill of exceptions does not ])rojudice parties' rights: Cline v. Broy, 1 Or. 89. Object of statement is to make that matter of record which before was not: Rickey v. Ford, 2 Or. 251. Statement is not necessary in all appeals: Id.; Pittman V. Pittman, 3 Or. 472. Order enlarging time within which statement may be made and served must be made within the time fixed by law for the performance of these requiremeuts: Scelcy v. Sebastian, 3 Or. 563. Appeal and Error. 45 Appeal and Error (continued). In criminal cases bill of exceptions must show that the questions were raised in the court below: Fulton v. Earlmrt, 4 Or. 64. Bill of exceptions should be presented, allowed, and Mgnod prior to first day of term after trial: Ilolcomb v. Teal, 4 Or. 352; contra, Ah Lep v. Gong Choy and Gong Wing, 13 Or. 205. Must state enough concerning the evidence given to show whether instructions asked were proper: Richards v. Fanning, 5 Or. 356; State v. Lee Yan Yan, 10 Or. 305; Yelm Jim v. Washington Territory, 1 W. T. 63; Brown Brothers & Co. v. Forest, 1 W. T. 201; Thompson v. Washington Territory, 1 W. T. 547; Or. R. & N. Co. v. Galliher, 2 W. T. 70. How exceptions should be taken: Richards v. Fanning, 5 Or. 356; Murray v. Murray, 6 Or. 17; Kearney v. Suod- grass, 12 Or. 311. Exhibit attached and referred to in the bill of exceptions is a part thereof: Morrison v. Crawford, 7 Or. 472; Ore- gonian Railway Co. v. Wright, 10 Or. 162. And this, though such attached exhibit is not marked ''exhibit" in any manner: Oregonian Railway Co. v. Wright, 10 Or. 162. Statement of the testimony and ruUngs,not signed by the judge, though certified as correct by the attorneys for both parties, is insufficient: Singer Mfg. Co. v. Graham, 8 Or. 17. Must show all evidence relating to challenge of juror, or the alleged error will not be reviewed: State v. Tom, a Chinaman, 8 Or. 177; Ilayden v. Long, 8 Id. 244; McAllister v. Washington Territory, 1 W. T. 360. So where abuse of discretion in permitting a child to tes- tify is claimed, the bill must contain all the^vulence relating thereto: State v. Jackson, 9 Or. 457. Motion for new trial and proceedings had tlfercon, to be considered, must be made a part of the bill of excep- tions: Oregonian Railway Co. v. Wright, 10 Or. 162; Chung Yow v. Hop Chong, 11 Or. 220; State v. Drake, 11 Or. 396; McAlhster v. Territory, 1 W. T. 360; but see Bowen v. State, 1 Or. 270; Kearney v. Snodgrass and Minor, 12 Or. 311; State v. Becker, 12 Or. 318. 46 Appeal and Error. Appeal and Error (continued). Affidavit in support of motion for order to abate nuisance need not be made a part of the bill: Ankeny v. Fair- view Milling Co., 10 Or. 390. The object of a bill of exceptions at common law and un- der the Code: State v. Drake, 11 Or. 396. Order overruling motion for new trial and exceptions based thereon are not properly a part of a bill of ex- ceptions: Bowcn V. State, 1 Or. 270; Kearney v. Snod- grass, 12 Or. 311; State v. Becker, 12 Or. 318. Bill of exceptions should be tendered immediately after trial unless time is extended, but settlement and allow- ance may be made at any reasonable time thereafter: Ah Lep V. Gong Choy, 13 Or. 205. Judge refusing to sign may be compelled by mandamus; delay, in such case, does not prejudice appellant: Id. Where bill is not tendered until after the close of the term and after extension of time to file has expired, judge has no power to sign: Morgan v. Thompson, 13 Or. 230. Where party has once duly excepted to the ruling of the court, it is not necessary to renew the exception on motion for a new trial or in arrest of judgment, to pre- Ber\'e it: Tolmie v. Day, 1 W. T. 46. Error must be excepted to at the time, and presented by bill of exceptions: Hartigan v. Washington Territory, 1 W. T. 447. Under section 430, Civil Practice Act, 1873, the evidence in an equity case cannot be brought to the Supreme Court except by bill of exceptions: Mann v. Young, 1 W. T. 454. Motion for new trial because of insufficiency of evidence, or because verdict is contrary to law, must clearly specify the grounds thereof, or bill of exceptions based thereon fails: Jones v. Wiley, 1 W. T. 603. learning the day for the settlement of a bill of exceptions may not be sufficient, in case of notice to the opposite party, without also designating an hour; but when a day for sucii purpose is stipulated for by the parties, neither can complain that the hour of hearing is not known: City of Seattle v. Buzby, 2 W. T. 25. Only so mucii of the evidence need be stated in bill of exceptions as is required to explain the charge to the jury: Id. Appeal and Error. 47 Appeal and Error (continued). Evidence need not be set forth in bill of exceptions in detail: Id. Bill of exceptions must show that instructions complained of upon a particular point were all the instructions given on that subject: Oregon R. & N. Co. v. Galliher, 2 W. T. 70. A bill of exceptions has no place, and performs no office in a chancery court: Parker and Boyer v. Denney, 2 W. T. 176. The facts contemplated in the statement provided in sec- tion 3 of the act of 1883 are material, evidentiary facts, propounded in the progress of a cause through the lower court: Breemer v. Burgess, 2 W. T. 290. An ex parte affidavit filed with the papers of the case, but not made a part of the bill of exceptions, will not be noticed by the Supreme Court: Fox v. Territory of Washington, 2 W. T. 297. Where an appeal is taken under the act of 1883, a bill of exceptions, subsequently signed by the judge, does not meet the requirements that the judge shall certify a statement containing all the material facts in the cause: Collins V. City of Seattle, 2 W. T. 354. The statement of facts provided in section 3 of the act of 1883, relative to appeals, is intended to include every- thing material that transpired in the cause not other- wise a part of the record: P. S. I. Co. v. Worthington, 2 W. T. 472. Both statement and bill of exceptions in the same case are not contemplated under the act of 1883: Id. 6. Undertaking. Must be filed within twenty days after the judgment in Justice's Court: Strang v. Keith, 1 Or. 312. Firm name signed as surety binds partner signing^ame only, unless authorized by firm: Charman v. Warner and McLane, 1 Or. 339. Insufficiency of, can be waived by respondent, and appel- lant cannot question: Cain v. Harden, 1 Or. 360. No undertaking other than bail-bond necessary in crim- inal appeal: State v. Ellis, 3 Or. 497. Undertaking must be filed within ten days after service of notice, or the appeal is not perfected: Canyon Road 48 Appeal and Error. Appeal and Error (continued). Co. V. Lawrence, 3 Or. 519; Cross v. Chichester, 4 Or. 114; N. P. Terminal Co. v. Lowenberg, 11 Or. 286. Exceptions to sureties must be made within five days after the fihng: Lewis v. Lewis, 4 Or. 209. Affidavits of sureties must be filed contemporaneously with undertaking: Ilolcomb v. Teal, 4 Or. 352; Alber- son V. MahafFey, 6 Or. 412; State v. McKinmore, 8 Or. 207; Pencinse r. Burton, 9 Or. 178. When undertaking for stay of proceedings has been given, the Circuit Court, on motion, may recall an execution issued: Bentley v. Jones, 8 Or. 47. Undertaking must not be limited in amount: State v. McKinmore, 8 Or. 207. Notice must be served before undertaking is filed, and simply refiling latter after service is insufficient: Weiss V. Jackson County, 8 Or. 529. Motion for leave to file new undertaking, after motion to dismiss, must be accompanied by a showing that the defect in former undertaking occurred by excusable mistake: Pencinse v. Burton, 9 Or. 178; De Lashmutt V. Sell wood, 10 Or. 51. After the time for filing has expired, a new undertaking cannot be substituted, on exception to the sureties on former one being filed: Simison v. Simison, 9 Or. 335. On appeal from order of confirmation of judicial sale, undertaking to pay value of use of premises pending appeal is void as not provided for by statute, and does not bind the sureties: Bank of British Columbia v. Harlow and Page, 9 Or. 338. Such bond not being provided for by statute gives appel- lant no right to hold possession: Id. Undertaking may be filed same day as notice, and in such case is presumed filed after notice: Poppleton v. Nel- son, 10 Or. 437. Though undertaking is filed before notice, upon motion to dismiss, a cross-motion being filed, leave may be granted, on proper terms, to file a new undertaking upon a showing of excusable mistake: Hawthorne v. City of East Portland, 12 Or. 210. Affidavit of (jualification of sureties on appeal having been made prior to service of notice of appeal from Justice's Appeal and Error. 49 Appeal and Error (continued). Court, leave to perfect the appeal by filing new under- taking should bo granted, or the motion to dismiss over- ruled: Ilosford V. Logus, 13 Or. 130. Undertaking is not defective if executed after judgment, though before notice was served: Byers v. Cook, 13 Or. 297. The giving of a counter-undertaking by respondent to prevent stay of proceedings and to enforce the judg- ment, does not discharge the sureties on the appellant's undertaking: Ah Lcp v. Gong Choy, 13 Or. 429. The consideration for the counter-undertaking is the privi- lege of enforcing the judgment: Id. Clerk should certify up both undertakings when counter- undertaking is given: Id. Justice of peace has no power to permit filing of under- taking after the thirty days for taking appeal have ex- pired: Odell V. Gotfrcy, 13 Or. 466. On appeal from justice, it is not essential that the appel- lant himself sign the undertaking; it is sufficient if signed by the sureties: Drouilhat v. Rottner, 13 Or. 493. Undertaking for double rental value of premises is a pre- requisite to appeal in a forcible entry and detainer case: Danvers v. Durkin, 14 Or. 37. AjQidavit of surety not stating the amount he is worth ia fatally defective: Starks v. Stafford, 14 Or. 317. 7. Transcript and Record. Transcript must be filed by second day of term, or Su- premo Court has no jurisdiction: Heatherly v. Hadley^ 2 Or. 119; Dolph v. Nickum, 2 Or. 205. When time is too brief to prepare transcript, extension may be granted by circuit judge or Supreme Court: Dolph V. Nickum, 2 Or. 203. ^ Application for extension should be made within the time for filing: Id. Transcript from Justice's Court on appeal, not sufficiently docketed when filed in Circuit Court, to allow execu- tion to issue: Chapman v. Raleigh, 3 Or. 34. Appellant must bring perfect record; lost originals, in- cluding notice of appeal, must be supplied by copies: Wolf V. Smith, 6 Or. 75. Or. Dig.— 4 60 Appeal and Error. Appeal and Error (continued). Affidavit in support of motion for order to abate nuisance is part of transcript: Ankeny v. Fairview Milling Co., 10 Or. 390. Order enlarging time to file transcript in criminal cases must be made by trial court: State v. Bovee, 11 Or. 57. Referee's report in action at law is no part of the tran- script: Osborn v. Graves, 11 Or. 526. Whether by stipulation without order of court time to file transcript can be extended, quasre: Peterson v. Foss, 12 Or. 81. - Transcript cannot be taken up and filed by respondent on appeal from Justice's Court, when the appellant neglects to do so: Steel v. Rees, 13 Or. 428. Judgment of affirmance or reversal will not be entered un- less a transcript be filed: Roberts and Hoyt v. Tucker, 1 W. T. 179. Seven pieces of paper pinned together, each certified to be a copy of the correspondent paper in court below, with no other certificate, do not constitute a transcript: Miskel V. Stone, 1 W. T. 229. Receipt of attorney, filed with the papers of the case, ' showing satisfaction of the judgment, is properly certi- fied up as a part of the transcript: Lyons v. Bain, 1 W. T. 482. A pro forma judgment cannot be recognized as final and entitled to review, unless the transcript contains the certificate prescribed in section 18, page 25, Laws of 1875: McMullen v. McGilvrey, 1 W. T. 513. Written evidence within section 453, Civil Practice Act of 1877, for the purpose of appeal, defined: Coleman v. Yesler, 1 W. T. 591; Seattle & W. W. R. R. Co. v. Ah Kow, 2 \\\ T. 36. Certificate authenticating a transcript held void, both for its indcfinitenoss and for want of a seal, and because the matter certified to is not a transcript: Coleman v. Yesler, 1 W. T. 591'. Upon good cause> shown, a motion to amend the certificate or substitute a correct certificate would be allowed if thereby a perfect transcript could be obtained: Id. The whole of the evidence must be certified on an appeal case: Parker v, Denny, 2 W. T. 360. Appeal and Error. gj Appeal and Error (continued). A transcript not sent up in obedience to the statutory notice ,s not to be received by the Supreme Court i^ort Blakeley Mill Co. v. Clymer, 1 W T G07 Evidence in a cause can only be authenticated by the pre- siding judge of the lower court, or, in a proper cJo of written testimony, by the clerk: Seattle & W W R R Co. V. Ah Kow, 2 W. T. 36. The judge in the lower court who decides the case is em- powered to certify the evidence, though such evidence was taken before his predecessor: Id Certificate of a former judge or of the short-hand reporter gives no sanction to such evidence- Id Only when the evidence consists wholly of written testi- mony can It be certified to by the clerk Id What degree of fullness and certainty is required in clerk's ccrtific-ate of record authenticated in the lower court: bteamboat Zephyr v. Brown, 2 W T 44 The provisions of the Code, that the clerk shall forthwith upon payment of his fees transmit a transcript of the record in the cause, does not require an unreasonable instantaneousness of action, and the appellant should look after and supervise the preparation of his tran- script: Crawford and Harrington v. Haller, 2 W T The intent of the language in section 459 of the Code is, that t^he clerk shall, as quickly as may be consistent with the nature of the record and the appellant's actions and directions, send up the transcript- Id Failure of the transcript to reach the Supreme Court speedily IS not to be imputed to negligence of the clerk until the presumption that he has acted as he ought is fairly rebutted: Id. Certificate by the clerk that the evidence contained^n the record is all the evidence in the cause reported to the trial court by the referee, to whom the cause was re- lerred for taking and recording the evidence, is insuf- hcient as not showing that all the evidence in the case 18 certified: Mulkey v. McGrew, 2 W T 259 Parties cannot waive such certificate by stipulation or estoppel: Id. The Supreme Court will not take notice of an ex parte 52 Appeal and Error. Appeal and Error (continued). affidavit filed with the papers in the case, but not embodied in the bill of exceptions: Fox v. Territory, 2 W. T. 297. Rules of trial courts are part of the record of every cause tried therein, but cannot be considered on appeal unless properly certified as part of the record: W. W. P. & P. Co. V. Budd, 2 W. T. 336. In an appeal under the act of 1883, the evidence cannot be certified to the Supreme Court by the clerk of the District Court under the Code of 1881: Meeker v. Gar- della, 2 W. T. 355. When an appeal is taken under the Code of 1881, the evi- dence must be certified in accordance with the provis- ions of section 451 of that Code: Parker v. Denney, 2 W. T. 360. Certificate of the district clerk failing to show that the evidence upon which the case is tried in the lower court has been certified to the Supreme Court, the appeal was dismissed: Brown v. Hazard, 2 W. T. 464. Though the certificate of the clerk of the lower court fails to mention an assignment of errors, yet if the record shows the existence of the same properly served, there is no ground of dismissal: P. S. I. Co. v. Worthington, 2 W. T. 472. Instructions of the lower court, returned into the appellate court as a separate paper with no other sanction than the clerk's certificate, are stricken from the files: Id. Statement of facts coming to the Supreme Court separate from the transcript, bearing no evidence that it was transmitted with the transcript by the clerk of the Dis- trict Court, cannot be considered by the appellate court as a part of the record: Id. 8. Effect. On appeal by garnishee after paying judgment under pro- test, the duty of the sheriff is still to apply the money to the satisfaction of the judgment: Dufernoy v. Stitzel, 3 Or. 58. Appeal does not afTcct conclusive nature of decision until tlu; decision is reversed: Warner v. Myers, 3 Or. 218. In criminal cases, does not vacate the judgment in the court below: Whitley v. Murphy, 5 Or. 328. Appeal and Error. 68 Api)eal and Error (continued). A suit is deemed pending in the trial court until appeal is perfected, or time for taking has expired: Dick v. Kendall, G Or. 166; Garrison v. Checney, 1 W. T. 489. Circuit Court cannot render judgment against sureties on an undertaking on appeal from justice in a criminal case, where the notice of appeal and transcript are not filed: State v. Zingsera, 7 Or. 137. Writ of error, under statute of 1873, is not the begin- ning of a new action, but a proceeding in a pending action: Garrison v. Cheeney, 1 W. T. 489. The giving of a notice of appeal, and the entry of the same on the journal of the trial court under the act of 1883, has the efl'ect of transferring the cause to the Su- preme Court: Meeker v. Gardella, 2 W. T. 355. 9. Dismissal of. In a case where it was uncertain whether appeal was taken in good faith or not, on appeal being dismissed for want of prosecution, the damages fixed by statute were not allowed: Coffin v. Hanner, Jennings, & Co., 1 Or. 236. After appeal is perfected, on failure to file transcript, how respondent may obtain affirmance: Heatherly v. Ilad- ley and Owen, 2 Or. 117; Roberts and Hoy t v. Tucker, 1 W. T. 179; Roberts and Miner v. Bush, 1 W. T. 181. Motion to dismiss, on ground that no statement or bill of exceptions has been made, will not be entertained: Rickey v. Ford, 2 Or. 251; Pittman v. Pittman, 3 Or. 472. Appeal from judgment for want of answer gives court no power except to dismiss: Passman v. Baumgartner, 3 Or. 469. Appeal will be dismissed on motion if the undertaking is not filed within ten days after service of notice :^'any on Road Co. V. Lawrence, 3 Or. 519; Cross y. Chichester, 4 Or. 114; N. P. Terminal Co. v. Lowenbcrg, 1 1 Or. 286. When want of jurisdiction apjxjars, court will, at any stage, of its own motion, dismiss: Evans v. Christian, 4 Or. 375; Tolmic v. Dean, 1 W. T. 46. Dismissal is equivalent to affirmance of judgment if the appellate court had gained jurisdiction: Simpson v. Prather, 5 Or. 87. 54 Appeal and Error. Appeal and Error (continued). Court may dismiss appeal and affirm the judgment when appellant does not pay trial fee: Bailey v. Frush, 5 Or. 136. Circuit Court dismissing appeal for want of jurisdiction cannot affirm judgment: Long v. Sharp, 5 Or. 439; Neppach v. Jordan, 13 Or. 246. Appeal from justice in criminal case not being perfected, Circuit Court cannot render judgment against the ap- pellant and his sureties on his bond, in dismissing the appeal: State v. Zingsem, 7 Or. 137. Dismissal for defects in the undertaking does not operate as an affirmance: State v. McKinnon, 8 Or. 485. That the errors assigned in the notice do not appear by the transcript, will not be considered on motion to dis- miss: De Lashmutt v. Sellwood, 10 Or. 51. Dismissal of appeal from order refusing mandamus cannot be had on the ground that another pending case in- volves the ultimate question of right in dispute: Simon V. Durham, 10 Or. 52. Appeal dismissed where original paper was lost before transcript was sent up, and a sworn copy was attempted to be substituted in Supreme Court: Corbitt and Mac- leay v. Bauer, 10 Or. 340. Such substitution must be made in the Circuit Court: Id. Dismissal for want of service of notice on some parties, where decree can be rendered without affecting them, will not be granted: Poppleton v. Nelson, 10 Or. 437. Appeal from Justice's Court should not be dismissed for defect in undertaking that the sureties made affidavit thereon, as to their qualification, prior to the service of the notice of appeal, where the appellant asks leave to perfect the appeal by filing new undertaking: Hosford V. Logus, 13 Or. 130. Wbere tbe notice of appeal from Justice's Court is fatally defective, no judgment but for dismissal can be given: Neppach v. Jordan, 13 Or. 246. Assigimients in motion to dismiss, that court has no juris- diction, no appeal has been perfected, and appellant never gave undertaking, are too general to be consid- ered: Byers v. Cook, 13 Or. 207. Appeal and Error. 55 Appeal and Error (continued). Misdescription of date of judgment in notice of appeal from justice is waived by appearing, and, on motion, obtaining a continuance of the cause till the next term: Moorhouse v. Donica, 13 Or. 435. On failure of plaintiff to file transcript, the defendant in error may dismiss for want of transcript, or secure a transcript and have the judgment affirmed or reversed : Roberts and Iloyt v. Tucker, 1 W. T. 179; Roberts and Miner v. Bush, 1 W. T. 181. Unless it satisfactorily appears that the transcript con- tains all the evidence introduced at the trial in the court below without jury, appellate court has no juris- diction, and must dismiss: McGowan v. Petit, 1 W. T. 514. Appellant failing to show any cause whatever for failure to file the transcript in time, cause is dismissed: Craw- ford and Harrington v. Haller, 2 W. T. 161. Appeal dismissed because a complete transcript is not certified to the Supreme Court, and because the brief of the plaintiff in error was not filed within the time pre- scribed by rule 10 of the Supreme Court: Lewis v. Host, 2 W. T. 402. Appeal dismissed because it did not appear from the record that the notice of appeal was ever made, or filed with the clerk of the court in which judgment is ren- dered: Crawford and Harrington v. Haller, 2 W. T. 161; Sayward v. Guye, 2 W. T. 420. Certificate of the district clerk failing to show that the evidence upon which the case is tried in the lower court has been certified to the Supreme Court, appeal was dismissed: Perry v. Stone, 2 W. T. 464. There being no assignment of errors in a legal action, the appeal should be dismissed: Crown v. Hazard, 2J\V. T. 464. Though the certificate of the clerk of the lower court fails to mention assignment of errors, if the record shows the existence of the same properly served, there is no ground for dismissal: P. S. I. Co. v. Worthington, 2 W. T. 472. 10. Practice. In criminal cases, court may reverse or affirm but not modify judgment: HoweU v. State, 1 Or. 241. 56 Appeal and Error. Appeal and Error (continued). On aflirmanco of appeal from County Court, judgment may be entered against principal and surety: Char- man and Warner v. McLane, 1 Or. 339. After default in County Court, defendant cannot put in answer on appeal: Cain v. Harden, 1 Or. 361. Same issues as those tried in the County Court must be heard on appeal: Id.; Moser v. Jenkins, 5 Or. 447. After failure to file transcript by second day of term, court has no jurisdiction except to dismiss: Ileatherly v. Ilad- ley and Owen, 2 Or. 117. - • As a general rule, affirmance in appeal case is final, but court will hold control for rehearing: McDonald v. Crusen, 2 Or. 259. Jurisdiction of Supreme Court is appellate and revisory only, and after mandate is sent below, order will not be made substituting heirs of parties since deceased: Boon V. McClane, 2 Or. 331. Court acquires no jurisdiction except to dismiss, on ap- peal from judgment for want of answer: Fassman v. Baumgartner, 3 Or. 469. Too late to apply for leave to perfect after motion to dis- miss has come on for hearing: Cross v. Chichester, 4 Or. 114; Alberson v. Mahafi^ey, 6 Or. 412; State v. Mc- Kinmore, 8 Or. 207. Affidavits in support of cross-motion should be filed before motion brought on for hearing: Id. When appeal in criminal case abates by death of accused, judgment is left in force for costs: Whitley v. Murphy, 5 Or. 328. In equity suits, the case must be tried anew on transcript and evidence: Howe v. Patterson, 5 Or. 354; O'Leary V. Fargher, 11 Or. 225, overruling Fahie v. Lindsay, 8 Or. 474. Ko amendment in Circuit Court changing the issues tried in Justice's Court allowed on appeal: Mosor v. Jenkins, 5 Or. 448; Monroe v. N. P.. Coal Mining Co., 5 Or. 510. The appellant is the " moving party," and must advance the trial fee: Bailey v. Frush, 5 Or. 136. Ameiidiuent not changing issues tried in County Court may be allowed on appeal: Monroe v. N. P. Coal Min- ing Co., 5 Or. 510. Appeal and Error. 57 Appeal and Error (continued). The respondent in an equity suit failing to appear in the Supremo Court is presumed to have abandoned the ap- peal, and on appellant making prima facie case, decree reversed: Donegan v. Murphy, 6 Or. 436. On appeal, execution may be recalled by the Circuit Court when an undertaking for stay of proceedings has been filed: Bentley v. Jones, 8 Or. 47. No paper or evidence not offered in the court below can be regarded on the appeal from order recalling execu- tion: Id. Recitals in record of appearance cannot be impeached by afiidavit on appeal: Cau thorn v. King, 8 Or. 138. On appeal from Justice's Court, where an oral reply to a counterclaim had been made, Circuit Court may allow written reply raising same issues to be filed: Rohr v. Isaacs, 8 Or. 451. Service of notice must precede filing undertaking, and simply refiling latter is insufficient: Weiss v. Jackson Co., 8 Or. 529. Rules are equally binding on court and litigants, and cannot be waived by the court: Coyote G. & S. M. Co. V. Ruble, 9 Or. 121. Petition for rehearing not filed within the time fixed by rule cannot be heard: Id. Question of the jurisdiction of the court below will not be considered on motion to dismiss: Pencinse v. Burton, 9 Or. 178. Cross-motion for leave to file good undertaking must be accompanied by a showing that the former defect was the result of excusable mistake: Id. Power of court to remand a cause and require pleadings reframed, to relieve from mistake, under the Code: Bran- son v. Oregonian R'y Co., 10 Or. 278. ~^^ Appeal in criminal cases, taken under chapter 23, Crim- inal Code (page 819, Hill's A. L.), may be heard at same term: State v. Bovee, 11 Or. 57. On remanding with leave to amend. Supreme Court can- not prescribe the nature and extent of the amendments: Branson v. Oregonian R'y Co., 11 Or. IGl. On filing an auicnded answer, all former ones, and de- murrers and motions relating thereto, are abandoned, 58 Appeal and Error. Appeal and Error (continued). and cease to be part of the record reviewable on appeal: Wells V. Applegate, 12 Or. 208. In equity, upon an appeal from a part of a decree, the appellate court is confined to a trial de novo upon the part appealed from: Shook v. Colohan, 12 Or. 239. Where in an action at law there is error resulting in in- jury, and the judgment can be segregated,on remission of the erroneous portion, the judgment may be affirmed as to the balance: Mackey v. Olssen, 12 Or. 429. Circuit Court cannot by rule require service of copy of undertaking on appeal from Justice's Court to be made on opposite party on seeking to perfect appeal: Hosford V. Logus, 13 Or. 130. Motion to dismiss appeal not specifically indicating the defect objected to, it is not too late to apply to substi- tute new undertaking after motion comes on for hear- ing: Id. Except for abandonment of appeal, damages will not be allowed, unless it clearly appears the appeal was for purpose of delay: Nelson v. Oregon R'y etc. Co., 13 Or. 141. Statute must be strictly pursued, or Circuit Court gair.s no jurisdiction on appeal: Steel v. Rees, 13 Or. 428. Respondent cannot perfect the appeal from Justice's Court himself, by taking up and filing the transcript, and if he docs, the action of the Circuit Court thereon is a nullity: Id. The clerk should certify both undertakings where counter- undertaking has been given: Ah Lep v. Gong Choy, 13 Or. 429. The nature of judgment to be entered on appeal where counter-utidertaking has been given: Id. "Whether Supreme Court has power to recall or change mandate after sent below, (jiiasre: Id. Legal propositions decided on a former appeal are the law of the case, and the former decision tliereon will not be retried: Powell y. D. S. & G. R. R. Co., 14 Or. 22. But where new facts appear, requiring ajjjjlication of a different rule of law, the law of the case does not apply to such: Bloomfield v. Buchanan, 14 Or. 181. Upon appeal from a judgment overruling a demurrer, Appeal and Error. 59 Appeal and Error (continued). appellate court will not hear application for leave to plead over: Powell v. D. S. & G. R. R. Co., 14 Or. 22. Such application must be made to the trial court in the first instance, and its decision will be reviewed only upon abuse of discretion: Id. Amendment of 1885 respecting taking of testimony and appeals in equity cases (sec. 397, Hill's A. L.) applies to ordinary suits only, and not to special and collateral proceedings: Martin v. Martin, 14 Or. 165. The effect of this amendment is to repeal sections allow- ing taking of depositions, and the employment of short- hand reporter in equity cases: Marks & Co. v. Crow, 14 Or. 382. And it seems such amendment leaves no provision for depositions de bene esse, except reference first be had: Id. But an appeal in a case tried before an amendment took effect is governed by the law as it previously stood: Id. On failure of plaintiff to file transcript, the defendant in error may dismiss for want of transcript, or secure a transcript and have the judgment affirmed or reversed: Roberts and Hoyt v. Tucker, 1 W. T. 179; Roberts and Miner v. Bush, 1 W. T. 181. Where record was destroyed in justice's ofiice by fire, after appeal, but before transcript was certified in the upper court, plaintiffs in error are entitled to have their cause docketed District Court to supply the missing records: Mullen V. Mullen, 1 W. T. 192. Justice's Court was not the proper court to supply the de- stroyed records in such case: Id. Motion to strike out a motion will not be allowed: Mann V. Young, 1 W. T. 454. Encumbrance of the record with superfluons matter should be punished by the imposition of costs: King Go. v. Collins and Condon, 1 W. T. 469. All the facts of a case being before a Supreme Court on appeal, it may render such judgment as the District Court should have rendered: Willey v. Morrow, 1 W. T. 474. When judgment is aflSrmed as to one of the appellees, he is entitled to recover costs against the appellant, but not against the sureties of the latter: Id. 60 Appeal and Error. Appeal and Error (continued). When the defendant appears in the appellate court and files a joinder of error, although the same is not con- templated by the statutes, it will operate as a general appearance: Schwabacher v. Wells, 1 W. T. 506. Defendant by waiving service of the motion to perfect the transcript, without protestation, has entered general appearance: Yesler v. Oglesbee, 1 W. T. G04. What is a "more favorable judgment" on appeal from a Justice's Court entitling the appellant to costs: Baxter - & Co. V. Scotland and Jensen,- 2 W. T. 86. Where service of notice of appeal has been had upon the clerk, upon proper application the Supreme Court will permit a return to be made showing the fact of ser- vice, after the rendition of judgment upon the assump- tion of due service: Blinn v. Crosby, 2.W. T. 109. Where, through any circumstances beyond appellant's control, omission or tardiness in filing transcript has happened, provision is made in section 400 of the Code for his relief, and in section 461 provision is likewise made for the rights of the appellee: Crawford and Har- rington V. Haller, 2 W. T. 161. The striking out of the evidence in a cause does not oust the jurisdiction of the Supreme Court, although it may destroy the efliciency of an appeal: Meeker v. Gardella, 2 W. T. 3.55. Penalty inflicted by the court for non-compliance with rule 9, respecting indorsements upon briefs, and fail- ing to set forth the names of the parties to cases cited: Carroll v. Anderson, 2 W. T. 366. A party, by calling attention in his brief to jurisdictional defects in an appeal, and Avarning his adversary that at the proper time he would move to dismiss, does not thereby appear generally and waive the defect: Wilson V. Wald and Campl)ell, 2 W. T. 376. Omission in the record having been ])rought to the atten- tion of the party, and he taking no steps to correct the same, he wiil not, after the hearing, be allowed to cor- rect tlie fault: Sayward v. Guye, 2 W. T. 420. Kotice under the act of 1883, in a settlement of the statement of facts to be used on appeal, need not be accompanied either with the original or a copy of the Appeal and Error. 61 Appeal and Error (continued). statement of facts souglit to be settled: P. S. I. Co. v. Worthington, 2 W. T. 472. Proper practice would be to lodge the proposed statement of facts, with notice of the settlement thereof in accord- ance with tlie act of 1883, with the clerk of the court for the inspection of the opposite party: Id. Where objection to a statement of facts was first made on the argument of the cause as not being properly certi- fied, the court grant reasonable time in which to au- thenticate such statement: Id. 11. Errors and Questions Considered. Court will be bound by the record: Thompson v. Back- enstos, 1 Or. 17; O'Kelly v. Territory, 1 Or. 51; Iloxie V. Hodges, 1 Or. 251; State v. Ducker, 8 Or. 394. Without bill of exceptions, none except errors of record noticed: Scott v. Cook, 1 Or. 25; Taylor v. Patterson & Co., 5 Or. 121; Oregonian R'y Co. v. Wright, 10 Or. 162; Newby v. Rowland, 11 Or. 133; State v. Drake, 11 Or. 396; Page & Co. v. Smith, 13 Or. 410. Irregularity of calling jury not regarded if appellant was not prejudiced: Hart v. Territory, 1 Or. 123. Judgment will not be disturbed where it appears there was evidence to warrant the verdict, although the bill of exceptions purports to state all the evidence and does not: Yamhill Bridge Co. v. Newby, 1 Or. 174. A judgment will not be reversed for error which worked no injury: Aiken and Flavel v. Leonard and Green, 1 Or. 224; Garrison v. City of Portland, 2 Or. 123; State V. Garrand, 5 Or. 216; Terwilliger v. Multnomah Co., 6 Or. 295; Johnson v. Shively, 9 Or. 333; Smith v. Cox, 9 Or. 475; Salmon v. Olds and King, 9 Or. 488; Briscoe V. Jones, 10 Or. 63; Heneky v. Smith, 10 Or. 349; Strong v. Kamm, 13 Or. 172; Moorhouse v. Donica^l4 Or. 430; Yelm Jim v. Territory, 1 W. T. 63; Brown Bros. & Co. V. Forest, 1 W. T. 201; City of Seattle v. Buzby, 2 W. T. 25. No error to refuse to instruct on point to which there was no evidence: Latshaw v. Territory of Oregon, 1 Or. 141; State v. Glass, 5 Or. 73; Glaze v. Whitley, 5 Or. 165; State v. Brown, 7 Or. 186; Brown Bros. & Co. v. Forest, 1 W. T. 201. 62 Appeal and Error. Appeal and Error (continued). When witness gives his opinion and understanding of conversation, though it is error to admit the evidence, if his conclusion is correct, there is no prejudice, and the judgment will not be reversed: Aiken and Flavel V. Leonard and Green, 1 Or. 224. The exercise by the District Court of its discretionary- power to allow defense after a default in Justice's Court will not be reviewed: Crandall v. Piette and Davidson, 1 Or. 226. Rejection of cumulative evidence, which there is no ground for believing would have changed the result, is no error: Jackson v. Sharff and Hill, 1 Or. 246. Error in sustaining demurrer is waived by pleading over: Huffman v. McDaniel, 1 Or. 259; Wells v. Applegate, 12 Or. 208; Ward v. Moorey, 1 W. T. 104. The granting or overruling of a motion for a new trial cannot be alleged as error: Bowen v. State, 1 Or. 271; State V. Fitzhugh, 2 Or. 227; State v. Wilson, 6 Or. 428; Hallock v. City of Portland, 8 Or. 29; State v. McDonald, 8 Or. 113; State v. Drake, 11 Or. 396; State V. Mackey, 12 Or. 154; Kearney v. Snodgrass, 12 Or.' 311; State v. Becker, 12 Or. 318; Tucker v. Flouring Mills Co., 13 Or. 28; 1 W. T. 6; Wassissimi v. Terri- tory, 1 W. T. 262. Such order must be made a part of the bill of exceptions, to be reviewable: Or. R'y Co. v. Wright, 10 Or. 162; Chung Yow v. Hop Chong, 11 Or. 220; State v. Drake, 11 Or. 396. But such order is not properly a part of the bill of ex- ceptions: Bowen v. State, 1 Or, 271; Kearney v. Snod- • grass, 12 Or. 311; State v. Becker, 12 Or. 318. An abuse of discretion must be shown to make such or- der reviewable: State v. Drake, 11 Or. 396; Tucker v. Flouring Mills Co., 13 Or. 28; Page v. Rodney, 2 W. T. 461. Statute of limitations must be pleaded or no advantage of it can be taken on error: Steamer Scnorita v. Simonds, 1 Or. 274. Error must be legally excepted to at the time, or is deemed waived: Rogue River Mining Co. v. Walker, 1 Or. 341; Kearney v. Snodgrass, 12 Or. 311; Blumberg Appeal and Error. 63 Appeal and Error (continued). V. McNear & Co., 1 W. T. 141; Brown Bros. & Co. v. Forest, 1 W. T. 201. Loss of material paper from judgment roll no ground reversal: Carland v. Heineborg, 2 Or. 75. Where same evidence was obtained by calling the wit- nesses for defense, no material injury was suffered by not allowing defendant to ask a question on cross-ex- amination of a witness for the prosecution: Garrison v. City of Portland, 2 Or. 123. When bill of exceptions does not show what answer was made to question asked, it is presumed to have been competent: State v. Fitzhugh, 2 Or. 227; Monroe v. N. P. Coal Mining Co., 5 Or. 509. Refusal to allow a question which might legally have been allowed, but which was subject to discretion of court, no error: Monroe v. N. P. Coal Mining Co., 5 Or. 509. Disregarding variance is discretionary, and will not be reviewed: Brown v. Moore, 3 Or. 434; Henderson v. Morris, 5 Or. 24. Exercise of discretion, except in case of abuse, will not be reviewed: Pittman v. Pittman, 3 Or. 553; Bennett v. Stephens, 8 Or. 444; Henderson v. Morris, 5 Or. 24; State V. Jackson, 9 Or. 457; State v. Drake, 11 Or. 396; Bowles V. Doble, 11 Or. 474; Adams v. Rutherford, 13 Or. 78; Page v. Rodney, 2 W. T. 461. Abuse of discretion must appear affirmatively, and will not be presumed: Id.; Henderson v. Morris, 5 Or. 24. Finding of fact by court below on trial without jury is not open to review: Fulton v. Earhart, 4 Or. 01; Hal- lock V. City of Portland, 8 Or. 29. Where no motion for new trial was filed, the appellate court will proceed cautiously in setting aside a finding: Hallock V. City of Portland, 8 Or. 29. ^ Where there is no conflict of evidence, it is error to find contrary thereto: Id. ' Where the record does not show that the evidence stated was all, the court presumes there was evidence to sup- port the findings: Fulton v. Earhart, 4 Or. 01; Parker V. Monteith, 7 Or. 277. Error not appearing affirmatively in the record, it is not presumed: Thompson v. Uglow, 4 Or. 369; Henderson 64 Appeal and Error. Appeal and Error (continued). V. Morris, 5 Or. 24; Dolph v. Barney, 5 Or. 192; Rich- ards V. Fanning, 5 Or. 356; Monroe v. N. P. Coal Mining Co., 5 Or. 509; Parker v. Monteith, 7 Or. 277; Lahoy v. Knott, 8 Or. 198; State v. Ducker, 8 Or. 394; Ladd and Bush v. Sears, 9 Or. 244; Tenny and McKenzie v. Mulvaney and Bemis, 9 Or. 405; Long and Spaur V. Lander, 10 Or. 175; State v. Lee Yan Yan, 10 Or. 365; Ncwby v. Rowland, 11 Or. 133; Tucker v. Flouring Mills Co., 13 Or. 28; Danvers v. Durkin, 14 Or. 37. Allowance of amendment discretionary; surprise no ground for review unless shown by the record: Hender- son V. Morris, 5 Or. 24. In a proceeding in nature oi scire facias, defense of nul tiel record is not available in the appellate court, and the presumption is, that the court below decided correctly on inspecting the record: McCracken v. Swartz, 5 Or. 62. Refusal to set aside default and allow answer is discre- tionary, and not reviewable in absence of abuse: White V. Northwest Stage Co., 5 Or. 99; Bailey v. Williams, 6 Or. 71. No error to refuse instruction on abstract propositions or hypothetical questions not involved in the case: Shat- tuck v. Smith, 5 Or. 125; Espy v. Fenton, 5 Or. 423; State V. Brown, 7 Or. 186; Rohr v. Isaacs, 8 Or. 451; Yelm Jim v. Territory, 1 W. T. 63; Schmieg v. Wold, 1 W. T. 472. On appeal from decision in a proceeding for leave to issue execution on dormant judgment, no evidence will be considered unless contained in the judgment roll: Ladd v. Iligley, 5 Or. 296. Finding of fact by court below in equity cases is not con- clusive on appeal; trial de novo on transcript and evi- dence will be had in the Supreme Court: Whitley v. Murphy, 5 Or. 353; O'Leary v. Fargher, 11 Or. 225, overruling Fahie v. Lindsay, 8 Or. 474. Error in overruling demurrer, when waived by answering over, cannot be assigned as error: Richards v. Fanning, 5 Or. 356; Olds v. Cary, 13 Or. 362. Where the record docs not show the applicability of an Appeal and Ereoe. 65 Appeal and Error (continued). instruction asked and refused, it is presumed improper: Id.; City of Seattle v. Busby, 2 W. T. 25. Findings, if not sufficient, must be embodied in bill of exceptions, after request made to the trial court for fur- ther and more specific findings: Luse v. Isthnms Tran- sit R'y Co., 6 Or. 125. Error to submit a question of fact to the jury on which there is no evidence: Morris v. Perkins, 6 Or. 350; Ilayden v. Long, 8 Or. 244; Marx v. Schwartz, 14 Or. 177; Breon v. Ilenkle, 14 Or. 494; Glenn v. Savage, 14 Or. 567. Except want of jurisdiction and insufficiency of the com- plaint, no errors but those alleged in the notice of appeal will be considered: McKay v. Freeman, 6 Or. 453; State v. McKinnon, 8 Or. 487; Weissman v. Rus- sell, 10 Or. 73. Error to exclude testimony of witness, present during the examination of other witnesses contrary to the order of the court, unless it appears the party was in complicity with him: Hubbard v. Hubbard, 7 Or. 42. Refusal to give special instructions substantially in- cluded in the general charge, no error: State v. Brown, 7 Or. 186. In equity cases, on appeal, verdict of a jury on contro- verted questions is not to be disregarded unless clearly erroneous: De Lashmutt v. Everson, 7 Or. 212; Svvegle V. Wells, 7 Or. 222. Objection that the judge was not authorized to sit can- not be heard, unless it was made in the trial court: State V. Whitney, 7 Or. 386. That an attorney assisting the prosecution was present, before the grand jury, no ground for reversal: State v. Whitney, 7 Or. 386; State v. Justus, 11 Or. 178. -^ Omission to instruct on matter pertinent is no error, un- less the attention of the court is called to*it at the time: Page v. Finley, 8 Or. 45; Hurst v. Bumside. 12 Or. 520. Bill of exceptions must show all evidence adduced on challenge to a juror for actual bias, to be considered on Ou. Dig.— 5 66 Appeal and Error. Appeal and Error (continued). appeal: State v. Tom, 8 Or. 177; Hayden v. Long, 8 Or. 244; McAllister v. Territory, 1 W. T. 360. Discretion of trial court to admit evidence on promise of attorney to connect the same and make it admissible subsequently, is not reviewable: Bennett v. Stephens, 8 Or. 444. The question on trial for contempt, or rule to show cause, is of fact merely, and will not be reviewed except for errors of law or want of jurisdiction: State v. McKin- - non, 8 Or. 487. It is error for judge in vacation to hear and determine a case of contempt of court committed in term time: Id. Error to permit counsel, against objection, to state facts not in evidence, in argument to jury: Tenny v. Mul- vaney, 8 Or. 513. Objection to plaintiflfs suing jointly cannot be heard for first time on appeal: Stingle v. Nevel, 9 Or. G2. Specific objection to evidence waives any other objections, and no other will be considered on appeal: Ladd and Bush V. Sears, 9 Or. 244. Error in submitting question to jury, that should have been determined by the court, will not avail where the verdict evidently found the fact correctly: Johnson v. Shively, 9 Or. 333. Discretion to allow child to testify will not be reviewed except in case of abuse: State v. Jackson, 9 Or. 457. Error in giving instruction, where the inference from the record shows that no injury was occasioned, no ground for reversal: Salmon v. Olds and King, 9 Or. 488; Briscoe v. Jones, 10 Or. 63; Strong v. Kamm, 13 Or. 172; Yelm Jim v. Territory, 1 W. T. 63; Brown Bros. & Co. V. Forest, 1 W. T. 201. Objection to improper remarks made by district attorney in argument must be made at the time, and exception saved, to be available: State v. Lee Ping Bow, 10 Or. 27; State v. Anderson, 10 Or. 448; State v. Abrams, 11 Or. 169; State v. Drake, 11 Or. 396. No error to receive verdict in criminal case in absence of defendant's counsel: State v. Drake, 11 Or. 396. Findings of referee, not objected to below, will not be Appeal and Error. 67 Appeal and Error (continued). reviewed on appeal: State v. Grover, Chadwick, and Fleischner, 10 Or. 66. Testimony of husband against wife as to matters commu- nicated during marriage, though incompetent, is pre- sumed given with consent of wife, where record is silent: Long and Spaur v. Lander, 10 Or. 175. Error appearing affirmatively, injury is presumed: Inver- arity v. Stowell, 10 Or. 261. Bill of exceptions not purporting to give all the evidence or instructions, error is not presumed in giving or refusing instructions: State v. Lee Yan Yan, 10 Or. 365; Brown Bros. & Co. v. Forest, 1 W. T. 201; Thomp- son V. Territory, 1 W. T. 547; Or. R. & N. Co. v. Galli- her, 2 W. T. 70. Instruction as to burden of proof held to apply to the proper issues only, though general in terms, where not objected to on that ground at the time: Rogers v. Wal- lace, 10 Or. 387. Instructions as to effect of written contract are to be re- viewed by examination of the terms of the contract, not as legal propositions: Id. Where there are several defenses pleaded, some of which are bad, it will not be presumed that evidence or instruc- tions were given relating to the bad, where the record is silent: Newby v. Rowland, 11 Or. 133. Slight variance not considered ; it is presumed that amend- ment was allowed on the trial: Davidson v. 0. & C. R. R. Co., 11 Or. 136. No errors not based on judicial action of the court below can be considered: State v. Abrams, 11 Or. 169. Error in not striking out matter on motion, no ground for reversal where the verdict was general and injury is not apparent: Krewson v. Purdom, 11 Or. 266. -- Findings of referee in proceedings supplemental to execu- tion will not be reviewed, unless there is no evidence to sustain them: Williams v. Gallick, 11 Or. 337. Failure to find an immaterial issue of fraud is no error: Id. Error to instruct jury to disregard ''mere slight variances" between witnesses as aflecting their credit: State v. Swayze, 11 Or. 357. Referee's report in action at law is not properly a part of 68 Appeal and Error. Appeal and Error (continued). the transcript, and cannot be considered: Osborn v. Graves, 11 Or. 526. Mere uncertainty in pleadings not objected to by motion or demurrer will not be considered on appeal: Id. Error in overruling motion for nonsuit is cured by evi- dence in defense which supplies the defect: Bennett v. N. P. Ex. Co., 12 Or. 49. In criminal cases, injury is presumed where the error con- sists in the infraction of a constitutional guaranty : State y. Lurch, 12 Or. 99. The admission of dying declarations is discretionary and cannot be reviewed: State v. Saunders, 14 Or. 300; Hartigan v. Territory, 1 W. T. 447. Where the questions between the parties are chiefly of fact determined by the verdict, there should be no reversal, unless the error is clearly shown: Ilurst v. Burnside, 12 Or. 520. Instruction assuming a fact which should be left to the jury is error: Yarnberg v. Watson, 13 Or. 11. Variance not appearing affirmatively to have worked in- jury, no ground for reversal: Tucker v. Flouring Mills Co., 13 Or. 28. Admission of evidence of injury by overflowing plaintiff's land, prior to time alleged in the complaint, is not error, and it is presumed that the jury were instructed not to consider the same: Id. "Within the last two years" in an instruction is presumed to refer to the two years prior to the commencement of the action: Id. Verdict for excessive damages is no ground for reversal on appeal; refusal of trial court to set it aside is not re- viewable: Nelson v. Oregon R'y etc. Co., 13 Or. 141. JCrror affecting rights of defendant in criminal case, how- ever slight, is ground for reversal: State v. O'Neil, 13 Or. 183. Appellant in Supreme Court may take advantage of error committed against liim in the court below, notwithstand- ing defects in his own pleadings, unless such defects would be ground for arrest of judgment if rendered in liis favor: Minter v. Durham, 13 Or. 470. Where two contracts are in evidence, a refusal to give a Appeal and Error. 69 Appeal and Error (continued). general instruction, which applies to but one of them the correct rule, is not error: Krewson y way of estoppel against the maker, with admissions of the latter made witliout knowledge of the facts: Id. One who signs his name on the back of a non-negotiable Bills and Notes. 89 Bills and Notes (continued). note before delivery is liable as a maker: Barr v. Mitchell, 7 Or. 346. Parol evidence is not admissible to explain or limit the effect of an indorsement in blank: Smith v. Caro and Baum, 9 Or. 278. The riglit of an indorsee with notice of failure of consid- eration cannot be superior to that of his indorsor: Davis v. Wait, 12 Or. 425. 3. Guaranty and Surety. Signing name on back of a note with word " security " does not make signer guarantor or maker: Kamin v. Holland, 2 Or. 59. Indorsee of note, given as guaranty in consideration of extension of time to maker of another note also owned by such indorsee, may sue on former note, although the latter is not indorsed to him by the payee: Moore v. Miller, 6 Or. 254. Judgment, on note, against principal, is no bar to action against principal and surety on another note given as collateral security for the payment of the first, unless the judgment has been satisfied: McCullough v. Hell- man, 8 Or. 191. Extension to principal "until after harvest" is void for uncertainty, and will not discharge surety: Findley v. Hill, 8 Or. 247. Neglect of creditor to sue principal when note is due, as requested by the surety, does not discharge the surety, although the principal afterwards becomes insolvent: Id. Relinquishment by creditor of collateral security exoner- ates surety: Brown & Co. v. Rathburn, 10 Or. 158. Such defense is available to the surety in an action at law against him by the creditor or his assignee with knowledge of the facts: Id. -,^ Surety on note may show by parol that he is such surety: Baker and Smith v. Eglin, 11 Or. 333; Harmon v. Hale, 1 W. T. 422. Such showing may be made in an action at law: Harmon V. Hale, 1 W. T. 422. Forbearance to sue principal, after request in writing by the surety, as provided by statute, discharges surety: Id. 90 Bills and Notes. Bills and Notes (continued). Verbal request by surety is not sufficient in such case* Id. Fraudulent conduct by the payee that misleads surety and prevents his obtaining indemnity will discharge the burety: Id. 4. Presentment, Demand, and Notice. One who adds the word " security " after his indorsement is entitled to demand and notice as indorser: Kamm v. Holland, 2 Or. 59. Waiver of demand and notice may be made by parol: Smith V. Lownsdale, 6 Or. 78. Indorser taking sufficient security to protect himself waives proof of demand and notice: Id. Language of waiver is to be strictly construed in favor of debtor: Sprague v. Fletcher, 8 Or. 367. Waiver of notice of protest for non-payment is not a waiver of demand of payment from maker: Id. Indorsement after maturity is in effect drawing new note, and demand and notice of non-payment are essential: Smith V. Caro and Baum, 9 Or. 278. Insolvency of payee of draft, though known, does not ex- cuse presentment for payment and notice: Hawley, Dodd, & Co. V. Jette and Clark, 10 Or. 31. Wlicre one of two parties, makers of a note, dies before maturity of tbe note, presentment must be made to the survivor, and not to the executor of the deceased part- ner: I^arlow and Shepherd v. Coggan, 1 W. T. 257. 5. Pleading, Practice, Evidence, etc. It is a suflicient allegation to show that plaintifif is owner of the note to allege that " defendant made his prom- issory note in writing, and thereby promised to pay plaintiff" : Moss v. Cully, 1 Or. 147. Complaint that omits to show that the note is due is in- suflicicnt: Williams v. Knighton, 1 Or. 234. In case a payment is made on note, limitation begins to run from the time of such payment: Partlow v. Singer, 2 Or. 307, Koslowski v. Yesler, 2 W. T. 407. Partner served, sued on joint note, may plead misjoinder and non-joinder: Kamm v. Ilarker, 3 Or. 208. One joint maker has the right to have all made parties: Id'. Bills and Notes. 91 Bills and Notes (continued). Adding "in gold coin" to note is a material alteration: Wells V. Wilson, 3 Or. 308. Payee taking with notice that the alteration was made without the consent of one of the makers, the latter is not bound; but if without notice, the latter is bound upon the original note: Id. Reasonable attorneys' fees in note construed as statutory fees rather than usury: Gaston v. McLeran, 3 Or. 380. Denial that D. delivered the note does not put in issue allegation that he made, executed, and delivered it: Cogswell V. Hayden, 5 Or. 22. Denial of transfer "for value received," and denial of in- debtedness raise no issue: Id. Note given on expressed consideration of transfer of a machine at maturity to maker: held, an independent promise, and transfer not a condition precedent: Haw- ley V. Bingham, 6 Or. 76. False representations to constitute defense must have been relied on and induced the execution of note: Dunning V. Cresson, 6 Or. 241. "When no time of payment is expressed in a note, it is deemed payable immediately: Dodd v. Denny, 6 Or. 156. Giving of promissory note is 'prima facie evidence of set- tlement: Matasce v. Hughes, 7 Or. 39. Admission in pleadings of purchase with notice of defect- ive title preclude proof to the contrary: De Laslimutt v. Everson, 7 Or. 212. Person not in possession of negotiable paper is presumed to have no authority to receive payments, but the pre- sumption is disputable: Swegle v. Wells, 7 Or. 222. Burden is on plaintiff suing on note given to secure the payment of another note, to show that both are due^ud unpaid: Moore v. Miller, 7 Or. 486. The rule inhibiting parol evidence to vary writing applies particularly to negotiable paper: Smith v. Caro and Baum, 9 Or. 278. On joint and several note, judgment against some of defendants is no bar to an action against the others: Sears v. McGrew, 10 Or. 48. Where surety answers jointly with other defendants, and 92 Bills and Notes. Bills and Notes (continued). states facts constituting a defense for himself alone, ob- jection that he did not answer separately must be taken before judgment: Brown & Co. v. Rathburn, 10 Or. 158. Alteration by a stranger, with intent to cancel note, raises no presumption of payment: Whitlock v. Man- ciet and Bigne, 10 Or. 166. Proof that indorser was, at time of indorsing, able to pay the note, is, not admissible for the purpose of raising a presumption that he was an accommodation indorser merely: Id. Note of married woman is not absolutely void; but if made within her rights as a married woman to contract, this must bo alleged and proved afiirmatively, in reply to the defense of coverture: Wells v. Applegate, 10 Or. 519. Where, on the face, the intention to hold the principal or only the agent signing is uncertain, semhle that parol evidence is admissible as between the parties: Guthrie V. Imbrie, 12 Or. 182. Person signing his name, adding simply " Pres." or '' Sec," is personally liable: Id. But president and secretary so signing, and also affixing the corporate seal with the name of the company there- on, bind the company: Id. Partial failure of consideration may be set up as a defense, and defendant may recoup his damages, though they be unliquidated: Davis v. Wait, 12 Or. 425. Note payable at particular place, payee must tender at the time and place, and must deposit and keep the sum intact, and pay it into court when sued: Adams v. Rutherford, 13 Or. 78. Semhle, that a provision in a note for forfeiture for failure to pay interest at the time and place is governed by law of contracts, and not by law mercluint, and plaintiflf must show performance on his part: Id. Equity will not decree forfeiture in such case, where the default was occasioned by the plaintiff's own conduct: Id. Defense of failure of consideration is proved by establish- ing tliat the note was given for medical services upon agreement that unless a cure was eliected there should Board op Commissioners. 93 Bills and Notes (continued). be no pay, and that the plaintiff falsely represented that he had cured defendant, and thereby induced tlie execution of the note: Andros v. Childers, 14 Or. 446. Judgment on a note bearing three per cent interest per month cannot be rendered for more than the legal rate: Roeder, Pcabody, & Co. v. Brown, 1 W. T. 112. Note for one thousand dollars currency, accompanied by written contract, that if paid in coin ii should be valued at five hundred dollars, cannot bo discharged by pay- ment of five hundred dollars in currency: Westbrook V. Chapman, 1 W. T. 227. Court being unable to conclude with certainty what was intended by a clause in a note respecting interest, and it being repugnant to the rest of the note, rejected the same: Hazard v. Maxon, 1 W. T. 585. Quscrc, whether parol evidence is admissible to prove, as a defense to a note secured by mortgage, that it was to be payable only upon the execution by the payee of a deed to the premises to the mortgagor: Kenworthy v. Merritt, 2 W. T. 155. Purchaser of real estate, having been placed in possession, cannot defend against the notes for purchase price on the ground that a further deed had not been executed as agreed, unless he first tender reconveyance: Id. The fact that a trustee of a corporation, who had a de- mand against the corporation, was present at a meeting of the board of trustees, which gave the note of the cor- poration to him in payment, does not of itself render the note invalid: Budd v. W. W. P. & P. Co., 2 W. T. 347. Controverted allegation of the giving of a due bill for value received may be proved by parol by showing that the maker had given the same in payment of the payee's interest in land purchased in the name of the maker: Bigelow V. Scott, 2 W. T. 378. ^ Such proof is not within the statute of frauds d;s proving a contract for sale of land not iu writing: Id. Payment and acceptance of interest on a note relieves it from the statute of limitations: Koslowski v. Yesler, 2 W. T. 407. Bills of Lading. See Common Carriers. Bills of Reviev/. See Equity; Judgments. 94 Board of Commissioners. Board of Commissioners (continued). Member cannot receive compensation for extra services above the statutory compensation: Territory of Oregon V. King, 1 Or. 106. Where statute requires board to keep a clerk, and does not fix his salary, he is entitled to reasonable compen- sation: Territory of Oregon v. Norris, 1 Or. 107. Board of Commissioners for Sale of School Lands. See Public Lands. Board of County Commissioners. See Appeal and Er- ror; Bridges; County Court; Ferries; Highways; Man- damus; Parties; Paupers. Board of Equalization. See Taxation. Boats and Vessels. See Admiralty; Liens; Water and Watercourses. The owners of a vessel are liable for injuries to a by-standcr occasioned by the careless firing of a signal gun by their agent, though the latter does not strictly follow his or- ders as to the manner of firing: Oliver v. North Pacific Trans. Co., 3 Or. 84. A revenue cutter of the United States is not subject to process to enforce mechanic's lien in state court: Gold- smith V. Revenue Cutter, 6 Or. 250. Material-men, furnishing material used by a person who has a contract to build and deliver the hull of a boat, have no lien on the boat after it is finished: North up v. The Pilot, 6 Or. 297. Boat under section 17, chapter 13, Miscellaneous Laws (p. 1599, Hill's A. L.), is a complete vessel, not a hull merely: Id. Passenger may go ashore at points where steamboat lands before arriving at his destination, without forfeiting his right to safe ingress and egress, and the owners of boat are liable to passenger injured in so landing: Dice v. W. T. oration may be a joint owner with an individual in a ferry franchise, and be entitled to an accounting for its share of the earnings: Id. Corporation has no powers other than the statute confers, or such as are incidental: Lakin v. Railroad Co., 13 Or. 43G. Unless specially authorized by statute, railroad corpora- tion cannot lease its road and so escape liability for torts, though committed by the lessee: Id. Construction company having control of and operating railroad for the owners, the latter are liable for injury occasioning death, though the use of the road was without their consent: Id. Corporation cannot avail itself of the services of a person, and then screen itself from liability on the groiTrrd that it never passed an ordinance on the subject: Tyler v. T. ofT. A. & P. U., 14 Or. 485. Railroad, though incorporated under a special act, may proceed to condemn lands under the gentTal ait rilating to corporations; Cascades R. R. Co. v. Louis Sohns, 1 W. T. 557. 150 Corporations. Corporations (continued), 3. Officers and Agents. Directors cannot in their own names execute deed for and in behalf of corporation; it must be the corporation's deed executed by the corporation: Eagle Woolen Mills Co. V. Monteith, 2 Or. 277. President is proper officer to confess judgment against cor- poration if duly authorized: Miller v. Bank of British Columbia, 2 Or. 291; Miller v. Oregon City Mfg. Co., 3 Or. 24. Director not bound by vote of majority where he claims on contract against the corporation: Hedges v. Strong, 3 Or. 18. Fraud of directors not reviewed in equity unless there be cause for removal and to wind up the corporation: Hedges v. Paquett, 3 Or. 77. If not prevented by the by-laws, directors may fix their own compensation, and may pass upon other questions in which the individual director has an interest: Id. But such acts are not conclusive, and are voidable, not void, and one who seeks to set them aside must show injury: Id. President of railroad company cannot mortgage locomo- tive under corporate seal without express authority: Luse v. Isthmus Transit R'y Co., 6 Or. 125. Note payable to "treasurer of Philomath College" inures to the benefit of the corporation: Philomath College v. Ilartless, 6 Or. 158. Deed sealed with the corporate seal, and subscribed by the president and secretary, declaring that they subscribe it for the corporation, passes title: Moore v. Willamette T. & L. Co., 7 Or. 359. Service of summons on agent is substituted service, and must show the facts which confer jurisdiction: Caro Bros. V. O. & C. R. R. Co., 10 Or. 510. Person cannot be the* agent of a corporation in making a purchase before the corporation exists: Kelly v. Ruble, 11 Or. 75. Person signing note with his name, and adding "Pres." or "Sec, "is personally bound: Guthrie v.Imbrie, 120r. 182. But officers signing their names and aflixing corporate seal with tiie name of the corporation thereon, binds the corporation: Id. Corporations. 151 Corporations (continued). The fact that the same person acted as a chairman and secretary of meeting of board of trustees will not invali- date the proceedings: Budd v. W. W. P. & P. Co., 2 W. T. 347. Not essential to legalityl^f an unstated meeting of trustees that proof of notice thereof be spread upon the records, such proof may be supplied aliunde: Id. Until the contrary appear, such meeting will be presumed regularly called: Id. Fact that trustee who had a claim against corporation was present at meeting of trustees which gave the note of the corporation in payment will not render the note void: Id. In absence of statute, trustee can contract with corpora- tion through the board of trustees, though he is present at the meeting: Id. 4. Stock and Stockholdkrs. Corporation may receive subscriptions to stock, and sue for assessments before being fully organized: Oregon Central R. R. Co. v. Scoggin, 3 Or. IGl. As soon as one half of the stock is subscribed, and direc- tors elected, stock may be increased : Willamette Freight- ing Co. v. Stanuus, 4 Or. 2G1. Subscription to all the stock is unnecessary before assess- ments may be levied: Id. Stockholder present and assenting to adoption of by-law by stockholders, and not adopted by the board of directors, levying assessment, is estopped to deny legal- ity of the levy: Id. Entry by agent of name of principal in a stock list, with- out subscribing the principal's name to sul)Scription list or stock-book by him as agent, does not bind princii)al as a stockholder: Grangers' M. Co. v. Vinson, 6 Or. 172. Where a bare subscription is relied on to show a-Twrsoa a stockholder, the subscription itself should contain enough to show his intention to subscribe for the stock: Grangers' Market Co. v. Vinson, 6 Or. 172; Coyote G. & S. M. Co. V. Ruble, 8 Or. 2S4. Purchaser is liable for unpaid balance due on stock pur- chased, when duly demanded by directors: Bush v. Cartwright, 7 Or. 329. 152 Corporations. Corporations (continued). Assignor of stock is liable, when after due demand the purchaser fails to pay such balance: Id. Creditor has no remedy against stockholder until his remedy against the corporation is exhausted : Id. Stockholder's liability is in equity, where all creditors and stockholders may be made parties: Bush v. Cart- wright, 7 Or. 329; Hodges and Wilson v. Silver Hill Mining Co., 9 Or. 200. Stockholders may direct the sale and manner of selling the realty on dissolution: Moore v. Willamette T. & L. Co., 7 Or. 359. On organizing, corporation cannot subscribe for its own stock: Holladay v. Elliott, 8 Or. 84. Minority of stock only being subscribed, stockholders cannot organize and elect directors: Holladay v. Elli- ott, 8 Or. 84; Coyote G. & S. M. Co. v. Ruble, 8 Or. 284. Person may be a corporator who is not a stockholder: Id. Stockholder is liable for assessment only when the records show the assessment was made by the directors: Id. Agreement made by stockholder before organization must be adopted by the corporation or the directors after their election to become binding: Id. Subscription to half the stock must be made before the corporation can be organized: Id. To be liable as a stockholder person must have signed or expressly authorized an agent to sign stock-book: Id. Original stockholders are made liable only by their writ- ten subscriptions, and there is no estoppel between them: Id. Agreement, made before organization, to subscribe, does not authorize directors afterward to put the person's name on the stock-list: Id. In action by corporation to recover subscriptions, condi- tions of the subscription may be inquired into, and there is no estoppel: Id. Stockholder purchasing mining property for the corpora- tion may be held a trustee, and required to convey to the corporation:' Id. Mandamus does not generally lie to compel transfer of stock on the corporation books: Durham v. Monumental S. M. Co., 9 Or. 41. Corporations. 153 Corporations (continued). Remedy for refusal to transfer stock on the stock-books is by action at law for damages: Id. Stockholder liable in equity where the corporation is in- solvent, although judgment and a return oi nulla bona is not obtained against the corporation: Ilodges and •Wilson V. Silver Hill Mining Co., 9 Or. 2U0. Liability of stockholders is several and limited: Id. Where it is made to appear that some are insolvent, the solvent stockholders must pay the amount of liability of the insolvent: Id. Liability extends only to those who are or have been holders of the legal title of unpaid stock: Branson v. Oregonian R'y Co., 10 Or. 278; S. C, 11 Or. 161. Agent purchasing stock and taking the legal title thereto in his own name, for the benefit of his principal, must be indemnified by the latter for liabilities thereon: Id. Trover lies for conversion of shares of corporate stock: Budd v. Multnomah St. R'y Co., 12 Or. 271. In a suit by creditors to hold stockholders individually liable, it is not necessary to make all the creditors or all the stockholders parties: Brundage v. Mon. G. & S. M. Co., 12 Or. 322. In such suit, if a defendant stockholder wants other stock- holders made defendants he must bring them in at his own expense, by answer, or other proceeding: Id. But in a suit to wind up an insolvent cori^oration, all cred- itors and stockholders should be made parties: Id. Directors owning all the stock, at a meeting where all were present, three transferred all their stock to the re- maining two; held, purely individual transaction, not- withstanding all were officers: Mays v. Foster, 13 Or. 214. In the absence of proof to the contrary, a transfer of stock to an individual cannot be held to be a transfeFlo the company: Id. Stockholder subscribing on condition, to take advantage of failure to comply with the condition should promptly require subscription canceled: Lee v. Imbrie, 13 Or. 510. Sucii conditional subscriber may be held liable as a stock- holder, where by his acts he has waived the condition: Id. 154 Corporations. Corporations (continued). Unpaid subscriptions constitute a fund upon which cred- itors can rely: Id. 5. Dissolution. Appeal does not lie from refusal of Circuit Court to grant leave to bring action to vacate charter: State v. Oregon Central R. R. Co., 2 Or. 255. Consent of governor necessary to authorize proceeding to annul corporate existence of school district: State v. Hulin, 2 Or. 306. Remedy is by action in the name of the state, where cor- poration usurps franchises: Kelly v. People's Trans. Co., 3 Or. 189. The dissolution and disposition of the corporate property is controlled by the stockholders: Moore v. Willamette T. & L. Co., 7 Or. 359. Costs and Disbursements. See Attorneys; Bills and Notes; Compensation; Fees. 1. Allowance of Costs. 2. Taxation of Costs. 3. Rights and Remedies. 1. Allowance of Costs. If plaintiff fails to recover fifty dollars in an action for damages, he recovers no costs unless the failure results solely from counterclaim or set-off, in which case costs follow the judgment: Roberts v. Carland, 1 Or. 382. Judgment against prosecuting witness for costs in prelim- inary examination before magistrate is void: McDonald V. Crusen, 2 Or. 259. The covenantee under a deed, in action on the covenant, having been ousted, cannot recover for costs incurred by him in defending in an action after eviction: Stark V. Olney, 3 Or. 88. Allowance discretionary, where on appeal from Justice's Court, less is recovered than the judgment obtained be- low: Ilollister v. Ilagui, 3 Or. 319. Tender must be made before suit is commenced, to carry costs: Oregon Central R. R. Co. v. Wait, 3 Or. 428. Costs can in no action at law be awarded to both parties: McDonald v. Evans, 3 Or. 474. Costs in an action of replevin, where defendant recovers part of the goods: Id. Costs and Disbursemexts. 155 Costs and Disbursements (continued). Costs in an action to recover real property: Crossman v. Lander, 3 Or. 405. Cannot be allowed to either party in contested election case, not being expressly authorized by statute:^ Wood V. Fitzgerald, 3 Or. 568. Trial fee must be paid by. appellant on appeal: Bailey v. Frush, 5 Or. 136. Upon affidavit that party is not able to pay, trial fee is not required: Id. Court may dismiss appeal on non-payment of trial fee: Id. On appeal from Justice's Court, section 542 (sec. 552, Hill's A. L.) governs costs, and section 539 (sec. 549, Hill's A. L.) applies only to cases originally begun in Circuit Court: Nurse v. Justus, 6 Or. 75; Burt v. Am- brose, 11 Or. 26. Under subdivision 1 of section 539 of the Code (sec. 549, Hill's A. L.), party recovering judgment in action for nuisance, where the title and right of possession of realty is put in issue, is entitled to costs: Bentley v. Jones, 7 Or. 108. What is an open mutual account, Avithin subdivision 3, section 539, Civil Code (sec. 549, Hill's A. L.), relating to costs: Hay den v. Waymire, 10 Or. 367. Plaintiff in replevin on appeal from County Court cannot recover more costs than damages in the Circuit Court, unless he prove the value of the goods, and his dam- ages to be greater than the sum of fifty dollars: Burt V. Ambrose, 11 Or. 26. Assignor bringing suit for an accounting against his as- signees is not entitled to costs, unless he tenders the balance due the creditors: Kinney v. Ileatley, 13 Or. 35. In such suit assignees cannot recover attorney's feev^vhen they have sufficient property in their hands to pay the creditors, beyond the statutory costs: Id. Where a plaintiff in a divol-ce case failed to prove her case, she was nevertheless awarded costs, the defendant not being without fault, and having property partly earned by the plaintiff: Bender v. Bender, 14 Or. 353. In an action against two or more defendants who do not 156 Costs AND Disbuesements. Costs and Disbursements (continued). sever their defense, but one bill of costs can be allowed under section 541 of the Civil Code (sec. 551, Hill's A. L.): Tyler v. T. of T. A. & P. U., 14 Or. 485. Orjiission to decree costs in admiralty does not prevent the decree from being final: Sloop Leonede v. United States, 1 W. T. 153. Such omission is presumptive that the court did not in- tend to decree costs, the allowance of costs being largely within the discretion of a court of admiralty: Id. Where liusband who began suit against his wife for di- vorce was ordered by the court to pay in a sura of money to enable wife to defend, and subsequently be dismissed the suit, judgment for costs and expenses of ■wife, including counsel fees, is properly rendered against him: Thorndike v. Thorndike, 1 W. T. 175. Such expenses are contemplated by the divorce act, and may be allowed by the court in any disposition it may make of the case: Id. Dismissal of the action having obviated trial, the Supreme Court reduces the amount of counsel fees allowed, but the other costs, being peculiarly within the knowledge of the lower court, are allowed to stand: Id. An encumbrance of the record on error with superfluous matter should be punished by the imposition of costs: King County v. Collins and Condon, 1 W. T. 4G9. Where judgment is affirmed as to one of the appellees, such appellee is entitled to costs to the extent of the statutory attorney's fee and disbursements for brief against the appellant, but not against his sureties: Wil- ley V. Morrow, 1 W. T. 475. Where a suit is brought in the District Court that might have been brought before a justice of the peace, costs arc not recoverable, unless judgment be for over one hun- dred dollars: Bagley v. Carpenter, 2 W. T. 19, over- ruling p;:bey V. Engle and Hill, 1 W. T. 72. And in such case the test of jurisdiction is not the sum recovered, but the sum claimed: Id. Allowance of attorneys' fees in a suit to foreclose a me- chanic's lien: Seattle & W. W. R. R. Co. v. Ah Kow, 2 W. T. 36. Costs and Disbursements. 157 Costs and Disbursements (continued). 2. Taxation of Costs. Mileage will not be allowed for witnesses beyond the state line: Crawford v. Abraham, 2 Or. 1G3. Mileage and attendance must be actual, but may be taxed, although witness attends without subpoena: Id. Must be for miles actually traveled, and days of attend- ance as witnesses only: Id. Allowed to witness within the state beyond reach of sub- poena: Id. But one claim for mileage and attendance of same witness at same term, in two or more cases between the same parties can be made: Id. Cost bill must be verified as a pleading, and, on objection made, amended bill must be filed: Id. Each item in cost-bill must be separately stated: Wilson V. Salem, 3 Or. 483; Cross v. Chichester, 4 Or. 114. Practice on filing of objections to cost-bill; what amended verified statement must contain: Id. What suflicient verification of cost-bill: Cross v. Chiches- ter, 4 Or. 114. Additional cost-bill cannot be filed after satisfaction of judgment, and execution issued for additional costs: Snipes v. Beezley, 5 Or. 420. Amount of costs need not be stated in the judgment, and may be taxed by the clerk from the records and papers on file: Huntington v. Blakeney, 1 W, T. 111. 3, Bights and Remedies. Decision of Circuit Court determining the amount of costs may be reviewed: Cross v. Chichester, 4 Or. 114. Right of action on undertaking for costs does not pass to ■ assignee of justice's judgment by virtue of the assign- ment of the judgment: Dray v. Mayer, 5 Or. 185. Judgment for costs and disbursements is left in full force in a criminal case, on abatement of appeal by thc_death of defendant and the lien of the state on the defendant's lands continues: Whitley v. Murphy, 5 Or. 328. Judgment for, in criminal case, may be enforced as in a civil action: Id. Relief granted against fraudulent taxation of costs in criminal case may be granted upon a proper showing: Id. 158 Costs and Disbursements. Costs and Disbursements (continued). Assignment of costs to attorney after verdict and before judgment is valid and will prevent right of set-off against the judgment which would otherwise exist: Ladd and Bush V. Ferguson and McFadden, 9 Or. 180. Appeal from judgment awarding costs, or from order fix- ing the amount of costs recoverable, when each is proper: Burt V. Ambrose, 11 Or. 26. Injunction does not lie to prevent issuing an execution to enforce an erroneous judgment for costs; appeal is the proper remedy; Nicklin v. Hobin, 13 Or. 408. Where costs have been improperly taxed, the remedy is by retaxation in the District Court: Newberg and Abrams v. Farmer, 1 W. T. 182. Co-tenancy. See Tenancy in Common. Counsel. See Attorneys. Counterclaims. See Set-off and Counterclaims. Counterfeiting. Punishment rests exclusively with courts of United States: State V. Brown, 2 Or. 221. But state legislatures may make it an offense punishable by state courts to have implements for counterfeiting in possession, and such offense is not counterfeiting: Id. Counties. See Paupers; Taxation. Liability for injury occasioned by defective bridge: Mc- Calla V. Multnomah Co., 3 Or. 424. Road supervisor is agent of; liability for his negligence: Id. Cannot pre-empt land for seat of justice under act of Con- gress of May 26, 1824: Whitlow v. Reese, 4 Or. 335. Can recover money illegally claimed by and paid to offi- cer for his services: Grant Co. v. Sels, 5 Or. 243. When suit brought in the wrong county, the objection is avoided by changing the venue by order of court before time to answer: Weiss v. Bethel, 8 Or. 522. Counties are bodies politic; may sue and be sued: Crossen V. Wasco Co., 10 Or. 111. Can accept service and waive copy of notice of appeal through county clerk: Read v. Benton Co., 10 Or. 154. When action lies against county for payment of claims: Cook V. Multnomah Co., 8 Or. 170; Mountain v. Mult' nomah Co., 8 Or. 470; Crossen v. Wasco Co., 10 Or. County Clerk. 159 Counties (continued). Ill; Pruden v. Grant Co., 12 Or. 308; Wood v. Riddle, 14 Or. 254; Vincent v. Umatilla Co., 14 Or. 375. County must be made party on review of acts of county court in transaction of county business: Wood v. Rid- dle, 14 Or. 254. Legislature has full power to apportion counties, and ad- just their common burdens: ^lorrow Co. v. Ilendryx, 14 Or. 397. The act for the organization of Morrow County construed: Id. When a new county is created out of an old one, the lat- ter takes the county property, and becomes liable for all the county debts, in the absence of express legisla- tion: Gilliam Co. v. Wasco Co., 14 Or. 525. In such case the old county may be compelled to pay the whole of the state levy of taxes charged upon the county at the time of separation: Id. Requisites of a complaint to Charge a county for mainte- nance of a pauper: Collins v. King Co., 1 W. T. 416. Account in such case must have been presented to and disallowed by board of commissioners before action lies: Id. County is not a proper party to proceedings instituted to compel the individual members of board of commission- ers to perform duties devolving on them by law, not as a board, but as members thereof: Kitsap County v. Carson, 1 W. T. 419. In such proceedings, county cannot sue out a writ of error: Id- Liability of a county for care of paupers: King County v. Collins and Condon, 1 W. T. 469. County Clerk. See Appeal and Error; Bonds and Under- takings; Costs and Disbursements; Elections; Fees; OfiQcers. ^_ Duties are not only ministerial, but quasi judicial: State V. Smith, 1 Or. 250. Appointment of deputy with powers to act for him must be authorized by law: Id. Has power to enter defaults without judicial direction, under the Code: Gray don v. Thomas, 3 Or. 250; Craw- ford V. Beard, 12 Or. 447. 160 County Clerk. County Clerk (continued) In so doing he exercises ministerial, not judicial, functions: Id. Deputy county clerk under territorial act of 1856 was an independent officer: Willamette Co. v. Gordon, 6 Or. 175. His official signature was "deputy clerk," and his duties were distinct from those of the clerk: Id. Bond being lost, equity will administer complete relief against sureties in favor of one damaged by clerk's acts: Howe v. Taylor, 6 Or. 284; S. C, 9 Or. 288. Parol proof of contents and the names of the sureties on such bond is admissible when the original is lost and the record copy destroyed: Howe v. Taylor, 9 Or. 288. Liability of the clerk and his sureties for failure to record a mortgage: Id. Kot entitled to commission on mone}^ bid at execution sale, not actually coming into his hands: Jackson v. SigHn, 10 Or. 93. • Can accept service and waive copy of notice of appeal for the county as respondent: Read v. Benton County, 10 Or. 153. Duty to make out and deliver to sheriff notices of elec- tion may be enforced by mandanms: State v. Ware, 13 Or. 380. County Commissioners. See Appeal and Error; Bridges; County Court; Ferries; Highways; Judgments and Decrees; Mandamus; Parties; Pauj^ers. County Court. See Administration; Administrators and Executors; Bridges; Counties; Courts; Ferries; High- ways; Judgments and Decrees; Jurisdiction. Cannot establish ferry for one year; such order is void: Cason v. Stone, 1 Or. 39. Can only establish perpetual ferries, and grant perpetual licenses: Id. County court sitting as county commissioners is a tri- bunal of limited and inferior jurisdiction: Ruckles v. State, 1 Or. 347; Wren v. Fargo, 2 Or. 19. Has no authority to require sheriff to give new bond on pain of vacating his office: Id. Nor after approving sheriff's bond, of its own motion dis- approve the same: Wren v. Fargo, 2 Or. 19. County Court. 161 County Court (continued). Certificate of, on appeal, in case wherein title to real property came in issue, is sufficient compliance with statutory requirement to certify such case to Circuit Court, and judgment is not void: Gird v. Morehouse, 2 Or. 53. Authority of, over assessment roll: Oregon Stean; Nav. Co. V. Wasco Co., 2 Or. 206; Rhea v. Umatilla Co., 2' Or. 298; Darragh v. Bird, 3 Or. 246. No authority to determine what persons are entitled to- the realty, and to partition the estate of decedent: Ilanner v. Silver, 2 Or. 336. In prohate matters, is a court of superior jurisdiction: Russell v. Lewis, 3 Or. 380; Tustin v. Gaunt, 4 Or. 305;. Monastes v. Catlin, 6 Or. 119. Jurisdiction and powers under act of 1868 (c. 39, tit. 1, Hill's A. L.) in regard to ditches: Seely v. Sebastian,, 4 Or. 25. Is a court of record; limited jurisdiction in laying out roads: Johns v. Marion County, 4 Or. 46; State v. Officer, 4 Or. 180; C. & G. Road Co. v. Douglas County,. 5 Or. 280. Record must show affirmatively that it has acquired juris- diction to lay out the road: State v. Officer, 4 Or. 180; Tompkins v. Clackamas County, 11 Or. 364. Record in probate matters is entitled to presumptions of regularity, and cannot be impeached collaterally: Tus- tin V. Gaunt, 4 Or. 305. Has no jurisdiction to try questions of title or eminent domain: C. & G. Road Co. v. Douglas County, 5 Or. 280> Review lies to Circuit Court upon its proceedings in lay- ing out a road: Id. Speaks only by its journal, and a contract with county- can only be proved thereby: Douglas County Road Co. V. Abraham, 5 Or. 318. '^ Supervisory control of Circuit Court over, to require com- pletion of the record, is exercised by mandamus, ap- peal, or review, not injunction: Road Co. v. Douglas County, 5 Or. 373. In appointing guardian for minors and lunatics, is a court of superior jurisdiction: Monastes v. Catlin, d Or. 119. Or. Dig.— U 162 County Court. County Court (continued). Such jurisdiction pertains to probate court within article 7, section 12, of the constitution: Id. Has exclusive jurisdiction in probate of wills: Willa- mette County V. Gordon, 6 Or. 175; Hubbard v. Hub- bard, 7 Or. 42; Brown v. Brown, 7 Or. 285. Is not liable for .compensation of a jailer appointed by the sheriff: Crossen v. Wasco County, 6 Or. 215. Order denying petition for road no bar to subsequently laying out road over same route: Scheland v. Erpel- ding, 6 Or. 238. May appoint special terms at which any business may be transacted: Id. Has power to employ attorneys to represent the county in proceedings by or against it: Van Sant v. Portland, 6 Or. 394. Order of distribution of personalty of deceased persons is final unless appealed from: Winkle v. Winkle, 8 Or. 193. Has exclusive jurisdiction in matters pertaining to trans- fer of the title to personalty of deceased persons: Id. Has power to make agreement with private corporation for appropriation of a county road: D. C. R. Co. v. C, & G. R. Co., 8 Or. 102. Has power to assess damages for taking material by road supervisor from adjoining land to repair roads: Ken- dall V. Post, 8 Or. 141. Allowing fees to coroner, for summoning jury, discretion- ary: Cook V. Multnomah County, 8 Or. 170. Duty of the County Court to provide armory for militia company: Mountain v. Multnomah County, 8 Or. 470; Vincent v. Umatilla County, 14 Or. 375. Decision in allowance of claims, where the statute pre- scribed the duty, and a judicial function is exercised, is subject to writ of review: Id, Has jurisdiction in proceeding to contest a will, and to revoke letters testamentary: Heirs of Clark v. Ellis, 9 Or. 128. Auditing and allowing claim of fees of officers fixed by law is not a judicial decision subject to review: Crossen V. Wasco County, 10 Or. 111. Such duties are distinguished from duty of auditing and County Judge. 163 County Court (continued). allowing claims under a statute investing the court with special or discretionary powers therefor: Id. Judicial functions in transacting business as financial agent of the county, and in auditing and allowing fees of officers, are not essential for that purpose, and can- not be implied: Id. Court has no power to permit corporation to establish toll- gate on highway at a point not on its corporate road: State V. Douglas County Road Co., 10 Or. 185. In exercising probate powers to sell real property of the estate of a deceased person, its jurisdiction depends upon the sufliciency of the petition: Wright and Jones V. Edwards, 10 Or. 298. No jurisdiction to sell is acquired where the petition is not strictly in accordance with the statute: Id. Jurisdiction to settle accounts of administrator, and deter- mine the amount of his liability to the estate, is exclu- sive: Hamlin v. Kinney, 2 Or. 91; Adams v. Petrain, 11 Or. 304. Statute requiring certain proceedings at "next ensuing" term refers to regular term, not special: Tompkins v. Clackamas County, 11 Or. 364. Term appointed by county judge, record not showing com- missioners present and concurring, is irregular, and an order establishing road then made is void: Id. Court cannot by nunc pro tunc order validate void order, against the rights of parties who have not had a hear- ing: Id. Jurisdiction in granting and revoking letters of adminis- tration is exclusive in the first instance: Ramp v. Mc- Daniel, 12 Or. 108. Powers in probate matters are not created by statute: Id. In auditing bills, where statute docs not fix the amount to be allowed, the court acts judicially, and its judg- ment cannot be reviewed except for error of want of jurisdiction: Cook v. Multnomah Count)% 8 Or. 170; Mountain v. Multnomah County, 8 Or. 470; Crossen v. Wasco County, 10 Or. Ill; Pruden v. Grant County, 12 Or. 308; Vincent v. Umatilla County, 14 Or. 375. County Judge. See County Court; Judges. Elected holds for four years, except in case of death or resignation: State v. Johns, 3 Or. 533. 164 County Judge. County. Judge (continued). Power to repair bridges in cases of emergency: Springfield Milling Co. v. Lane County, 5 Or. 265. Money illegally received by, under claim for salary, may be recovered by county: Grant County v. Sels, 5 Or. 243. County Seat. Act of 1868, changing county seat of Umatilla County, is constitutional: Simpson v. Bailey, 3 Or. 515. Act of 1872, changing county seat of Union County, is constitutional: McWhirter v. Brainard, 5 Or. 426. Submitting to vote the place of change is not unconstitu- tional as delegating legislative power: Id. Mandamus the remedy for contesting such vote, not injunc- tion: Id. County Treasurer. Not liable for money, in action for money had and re- ceived, paid to county and mingled with county funds: Trainer v. Multnomah County, 2 Or. 214. Re-enacting the law fixing his salary does not deprive him of the right to a percentage for receiving school funds, allowed to him by another statute not referred to in the re-enactment: Chatfield v. Washington County, 3 Or. 318. Courses and Distances. See Boundaries. Courts. Sec Circuit Courts; County Court; Judges; Judg- ments and Decrees; Jurisdiction; Rules of Court; Terms of Court. Every court has power to control its own process and pre- vent its abuse: Provost v. Millard, 3 Or. 370. May make reasonable rules for the conduct of business before them: Carney v. Barrett, 4 Or. 171. Nunc pro tunc order, when refusal discretionary, and when not: Road Co. v. Douglas County, 5 Or. 406. Territorial Probate Court was a court of inferior and lim- ited jurisdiction: Farley v. Parker, 6 Or. 105. Every court has power to amend its record to make it show the actual facts determined, and such amend- ment is not open to collateral attack: Harvey's Heirs V. Wait, 10 Or. 117. But having lost power to change previous decision, its alterations at a subsequent term are void: Id. Courts. 165 Courts (continued). Constitutionality of act of 1878 (sec. 2287, Hill's A. L.), providing for the election of the judges of the Supreme and Circuit Courts in district classes, decided: Cline and Newsome v. Greenwood and Smith, 10 Or. 230. Every court has power to vacate its decrees made without jurisdiction, whether at same or subsequent term: Ladd and Tilton v. Mason, 10 Or. 308. At any time when the rights of thind parties have not intervened, a court may amend its records by nunc pro tunc order to make it conform to the truth: Carter, Rice, & Co. V. Koshland, 12 Or. 492. Under section 911 of the Code (sec. 940, Hill's A. L.), courts have power to adopt any suitable procedure, when there is none pointed out by statute, conformable to the Code: Aiken v. Aiken, 12 Or. 203; Carter, Rice, & Co. V. Koshland, 13 Or. G15. Act of Congress of 1856, limiting times and places of holding courts, does not affect jurisdiction, but desig- nates time and place of its exercise: Leschi v. Terri- tory, 1 W. T. 13. Until designation of the times and places of holding the courts is made by the judges under that act, the laws of the territory on the subject control: Id. Organization and jurisdiction of the courts of Washington Territory considered: Id. Queere, whether amendment 6 to the United States con- stitution applies to territorial courts: Id. Act of Congress, August IG, 185G, regulating courts of Washington Territory, and requiring judges of Supreme Court to assign places for holding, took effect when the order was made, pursuant to the act: Bover v. Fowler, 1 W. T. 101. Court is always deemed open for purposes connected with a cause submitted to the jury: Edwards v. Te«^itory, 1 W. T. 195. In a qualified sense, territorial courts are United States courts; they exercise the combined jurisdiction of Cir- cuit and District Courts of the United States: Smith v. United States, 1 W. T. 2G2. Territorial courts arc not part of the federal judiciary: Mckels v. Griffin, 1 \V. T. 374. 166 Courts. Courts (continued). Judiciary act of 1789, and other acts conferring jurisdic- tion upon the United States courts, are not applicable to territorial courts: Id. A District Court of the territory cannot properly be en- titled a District Court of the United States: Id. Courts are open at all times in the district for defaults, and judge in chambers in any part of the district can render such judgment in cases wherever pending in the district: Murne v. Schwabacher Bros. & Co., 2 W. T. 130. It is against public policy for persons to agree or under- take to occupy the attention of courts with pretended litigation in which there is no question to be judicially determined: Connoly v. Cunningham, 2 W. T. 242. Covenants. See Contracts; Deeds. Coverture. See Husband and Wife. Creditor's Suits. See Executions and Proceedings Supple- mental; Fraudulent Conveyances; Judgments. Criminal Conversation. Evidence of the marriage may be given by the testimony of eye-witnesses or the parties: Jacobsonv. Siddal, 12 Or. 280. The gist of the action is not alone the loss of service, but also loss of society and comfort of wife: Id. Plaintiff may show the terms upon which he and his wife lived, and the effect of the injury upon their married life: Id. Criminal Law. See Assault; Assault and Battery; Bonds; Codes; Fines and Forfeitures; Gaming; Game Laws; Homicide; Insanity; Jurisdiction; Jury and Jury Trial; Justice of the Peace; Kidnaping; Larceny; Liquor Laws; New Trial; Nuisance; Rape; Statutes. 1. In Ge.neral. 2. Jurisdiction. 3. Indictment and Complaint. 4. Evidence. 5. Defenses. 6. Instructions. > 7. Practice and Incidents of Trial.. 8. Appeals. Criminal Law. 167 Criminal La"W (continued). 1. In General. Same act may be punishable under territorial law, and act of Congress: Territory v. Coleman, 1 Or. 191. A pack of playing cards is a " gambling device," within the meaning of the statute: Frisbie v. State, 1 Or. 264. An offense not declared by statute to be a felony, or pun- ishable by imprisonment in the penitentiary, is a mis- demeanor, punishable by imprisonmnent in the county jail: Horner v. State, 1 Or. 267. Criminal statutes are to be strictly construed in favor of the accused: Id. Must be construed in accordance with their natural and grammatical meaning: Remmington v. State, 1 Or. 281. Betting on a game of cards is not an offense under statute of 1858: Id. Keeping open house, in which intoxicating liquor is kept for retail on Sunday, is indictable; former statute making it a misdemeanor is repealed by implication: Palmer v. State, 2 Or. 66. Offense of larceny, committed without the state, continues and accompanies the stolen property carried into the state: State v. Johnson, 2 Or. 115. The offense may be tried in any county of the state into which the stolen property may be brought by the offender: Id. Embezzlement is the proper name for that crime where an agent fraudulently converts the money of his em- ployer: State V. Sweet, 2 Or. 127. The offense of having counterfeiting tools in possession with intent to use the same for counterfeiting is not included in the crime of counterfeiting, and may by act of legislature be made punishable by state courts: State V. Brown, 2 Or. 221. Game of cards called " poker " is not a "gambling device " within the statute: State v. Mann, 2 Or. 238. Said statute is void for uncertainty, since it does not enumerate the gambling devices prohibited: Id. Defendant accused of stealing from the person may be convicted of larceny, or larceny from the person, if the facts charged in the indictment are sufficient to include both: State v. Taylor, 3 Or. 10. 168 Criminal Law. Criminal Law (continued). Assault with dangerous weapon is felony, and private person may arrest offender: Lander v. Miles, 3 Or. 35. Under statute forbidding selling liquor without license, if the liquor be sold it is not material whether it be paid for: State v. Cutting, 3 Or. 260. Not violation of such statute to give away liquor without expectation of pay: Id. Subterfuge or understanding that the person obtaining the liquor will pay for it, or purchase something else because of it, is unavailing: Id. Lottery is a game of hazard, in which small sums are ventured for the chance of obtaining greater: Fleming V. Bills, 3 Or. 286. Payment of prizes in money is not essential to lottery: Id. Same act may be punishable under city ordinance and state statute: State v. Sly, 4 Or. 277; State v. Bergman, 6 Or. 341; Wong v. Astoria, 13 Or. 538. Any offense made punishable by section 527 of the Crim- inal Code (sec. 1735, Hill's A. L.) may be denominated mayhem: State v. Vowels, 4 Or. 324. Not necessary to the validity of a statute against gam- bling, that it shall describe the manner in which the prohibited game is played: State v. Carr, 6 Or. 133; State V. Gitt Lee, 6 Or. 425. It is sufficient if the game be described by name in the statute: Id. Proceeding by indictment is an action at law, within the meaning of the statute of 1876 against gambling (c. 45, Hill's A. L.), to recover fines and forfeitures under that act: State v. Carr, 6 Or. 133. There can be no legal compromise of a criminal charge where offender haa not been arrested, nor in any way held to answer the charge: Saxon v. Hill, 6 Or. 388. In comprising larceny under the statute, nothing more than the stolen property, or its value, and the neces- sary expense of reclaiming it, can be exacted: Id. The satisfaction must be unequivocally acknowledged, not a simple agreement to acknowledge satisfaction: Id. Homicide in perpetration of rape, arson, robbery, or bur- Criminal Law. 169 Criminal Law (continued). glary is murder in the first degree: State v. Brown, 7 Or. 18G. Removal of the goods being^continuous and uninterrupted from time of the robbery until the time of killing while endeavoring to escape, the killing is done during the robbery: Id. Acts of each person concerned in a joint criminal enter- prise involve all: State v. Johnson, 7 Or. 210. Where one intending to kill another misses him and kills a third person, he is equally guilty as though he had killed the person at whom he shot: Id. Omission to make any question as to the degree is not admission of the degree charged: State v. Whitney, 7 Or. 386. Money collected by a sheriff for taxes is the money of the county in his hands, and he may be guilty of larceny by converting the same to his own use: State v. Dale, 8 Or. 229. Larceny of horse, saddle, and bridle, taken at same time and place, the property of the same person, is but one offense: State v. McCormack, 8 Or. 236. Prosecution cannot split up such offense, and cause two indictments against the person so taking the articles: Id. Person knowingly receiving an over-payment of money, paid him by mistake, and concealing such payment, converts the money to his own use, is guilty of larceny: State V. Ducker, 8 Or. 394. A house kept for public dancing simply is not a "hurdy- gurdy " house within the statute: State v. Tilley, 9 Or. 125. If the acts charged in the indictment constitute murder in the first degree, it will support conviction in either degree: State v. Wintzingerodc, 9 Or. 153. — Power in a city charter to legislate to " secure ^the peace of the city " does not warrant the passage of an ordi- nance to close stores on Sunday: Corvallis v. Carlile, 10 Or. 139. Acquittal of assault and battery is no bar to prosecution for kidnaping: State v. Stewart, 11 Or. 52; S. C, 11 Or. 238. 170 Criminal Law. Criminal Law (continued). If a note has been " uttered or published as true or gen- uine" with intent to defraud, the offense under section 592, Criminal Code (sec. 1808, Hill's A. L._), is made out, though no defrauding was actually accomplished: State V. Lurch, 12 Or. 99. City of Portland cannot declare violation of an ordinance a misdemeanor: Portland v. Schmidt, 13 Or. 17. Penalty for violation of an act falls with its repeal, and cannot be applied to the violation of subsequent act without express language or necessary implication: State V. Gaunt, 13 Or. 115. An act prohibited by law, for which no penalty has been provided, cannot be punished as a misdemeanor: Id. No common-law offenses in Oregon; ofi'ense and penalty must be defined by statute: Id. Right of trial by jury is common-law right, and a prose- cution for violation of a city ordinance is not a criminal prosecution within the meaning of the constitution: Wong V. Astoria, 13 Or. 538. No deprivation of right to trial by jury, that such trial cannot be had in an inferior court or until appeal is taken: Id. City of Astoria has power to suppress and prohibit bawdy- houses, and punish for violation of the ordinance: Id. Power in city by charter to prevent and restrain riot, noise, disturbance, etc., in the streets, does not authorize pun- ishing for assault with dangerous weapon: Walsh v. Union, 13 Or. 589. Statute giving cumulative damages to person losing money at gaming is remedial, and not criminal or penal in that respect, tliough other sections of the act are criminal: O'Keefe v. Weber, 14 Or. 55. An action under such statute to recover damages is a civil, and not a criminal, action: Id, Act of 1885 regarding license of bar-rooms, etc., is uncon- stitutional and void: State v. Wright, 14 Or. 365. Pending prosecutions fall with the repeal of criminal statute; Leschi v. Territory, 1 W. T. 13. Under indictment for a high-grade crime, verdict may be rendered for a lower grade necessarily contained in the ofTense charged : Clarke v. Territory, 1 W. T. G8. Criminal Law. 171 Criminal Law (continued). Homicide on an Indian reservation is within the federal jurisdiction, and the rules of the common law govern: Shapoonniash v. United States, 1 W. T. 188. Within the admiralty jurisdiction of the United States, the crime is the same whether the murder of a citizen or a foreigner: Smith v. United States, 1 W. T. 262. Statute conferring on city power to license saloons, etc., does not repeal a general statute forbidding sale of liquor without license from the board of county commissioners: Corbett v. Territory, 1 W. T. 431. Statute prescribing qualifications of a person practicing medicine is not an ex post facto law or in violation of fourteenth amendment: Fox v. Territory, 2 W. T. 297. Sentence cannot be increased after judguient and com- mitment: State v. Cannon, 11 Or. ol3. 2. Jurisdiction. Territorial courts may punish offense against the United States of selling liquor to Indians, since the territory is a part of the Indian country: United States v. Tom, 1 Or. 26; Fowler v. United States, 1 W. T. 3. One who sells liquor to Indians may be punished under the territorial law and the law of the United States: Territory v. Coleman, 1 Or. 191. OflFense of larceny committed without the state continues and accompanies the stolen propert3% and may be pun- ished in any county in the state where the property is brought by the offender: State v. Johnson, 2 Or. 115. Justice of the peace has no authority to hear and deter- mine felony cases, but only to act as examining magis- trate: Williams v. Shelby, 2 Or. 144. Authority for punishing counterfeiting rests exclusively with the United States courts: State v. Brown, 2f Or. 221. _ State courts, under statute, may have authority to punish for having counterfeiting tools in possession with intent to use the same: Id. Jurisdiction of Police Court may be made the same as that of justice of the peace, but cannot be limited to criminal cases: State v. Wiley, 4 Or. 184. While acting as justice of the peace, police judge has 172 Criminal Law. Criminal La"w (continued). same jurisdiction as a justice: Id.; Portland v. Denny, 5 Or. 160. Circuit Court has jurisdiction of crime of assault and bat- tery: State V. Siy, 4 Or. 277. By charter of city of Portland, police judge has jurisdic- tion of all crimes defined by ordinance of said city: Port- land V. Denny, 5 Or. 160. In addition to such jurisdiction, he has jurisdiction identi- cal with justices of the peace: Id. A city ordinance which provides for punishing an act al- ready a crime under the state law does not deprive Cir- cuit Court of jurisdiction under the state law: State v. Bergman, 6 Or. 341. Under city charter giving power to prevent and restrain riot, noise, disturbance, etc., in the streets, city cannot give recorder's court jurisdiction to punish assault with dangerous weapon: Walsh v. Union, 13 Or. 589. Act of Congress, August 16, 1856, limiting times and places of holding District Courts, not an act affecting jurisdiction: Leschi v. Territory, 1 W. T. 13. The act simply designates the times and places for the exercise of jurisdiction, and the authority over crimes remains the same: Id. Homicide on Indian reservation is within the jurisdiction of the courts of the United States: Shapoonmash v. United States, 1 W. T. 188. Acts of Congress of 1825, 1835, 1846, and 1856 are not re- strictive of the act of 1790, but rather enlarge the juris- diction of the United States courts: Smith v. United States, 1 W. T. 262. Marine torts committed on tide-waters within the boun- daries of a county are within the jurisdiction of the United States courts: Id. It seems the territorial courts would also have jurisdic- tion of such offenses: Id. Murder committed on San Juan Island, at the time when that island was jointly occupied, under convention, by the United States and Great Britain, pending settle- ment of boundary, is within the jurisdiction of the ter- ritorial courts: Watts v. United States, 1 W. T. 289; Watts- V. Territory, 1 W. T. 409. Criminal Law. 173 Criminal Law (continued). 3. Indictment and Complaint. Allegation of mortal wounding on a day certain, the par- ticular day of the death not being alleged in the in- dictment, is sufficient, if the indictment is found and presented within a year from time of giving the wound: Bowen v. State, 1 Or. 270. Requisites of indictment in liquor license case, and what is surplusage therein: Burchard v. State, 2 Or. 78. Embezzlement is proper term in indictment for fraudulent conversion by agent of employer's money: State v. Sweet, 2 Or. 127. If indictment state sufficient facts to constitute larceny from the person, it includes simple larceny: State v. Taylor, 3 Or. 10. Form set forth in appendix to Code is sufficient for an indictment, and appendix is a part of the Code: State V. Dodson, 4 Or. 64; State v. Spencer, 6 Or. 152; State V. Brown, 7 Or. 186; State v. Lee Yan Yan, 10 Or. 365. Essentials of indictment under section 636 of Code, for unlawful charging of fees by public officer: State v. Packard, 4 Or. 157; State v. Perham, 4 Or. 188. Indictment must set forth the acts and circumstances constituting the offense: State v. Packard, 4 Or. 157; State V. Perham, 4 Or. 188; State v. Dougherty, 4 Or. 200. Essentials of an indictment for setting up a lottery: State V. Dougherty, 4 Or. 200. Complaint before magistrate need not be in writing on a charge of felony: Hannah v. Wells, 4 Or. 249. Any offense under section 527 of the Criminal Code (sec. 1735, Hill's A. L.) may be called mayhem in indict- ments: State V. Vowels, 4 Or. 324. Indictment for illegal voting under section 630 of Crim- inal Code (sec. 1846, Hill's A. L.): State v. Bruce, 5 Or. 68. Where the acts and circumstances are omitted, defect must be taken advantage of by demurrer, or islvaived: r State V. Bruce, 5 Or. 68; State v. Doty, 5 Or. 491. Indictment for assault with intent to kill is sufficient, if not demurred to, if in language of statute, although it does not state the acts constituting the ofifense: State V. Doty, 5 Or. 491. 174 Criminal Law. Criminal Law (continued). What objections are waived by failure to demur: Id. Where statute states the offense disjunctively, indictment is sufficient if it embrace the whole in a single count, using "and" for "or": State v. Carr, 6 Or. 133; State V. Bergman, 6 Or. 341; State v. Dale, 8 Or. 229. Dealing, playing, and carrying on faro constitute one offense, and may be so charged: Id. The language of the statute is explicit enough for the in- dictment, without further description: Id.; State v. Sam, 14 Or. 347. Requisites and sufficiency of indictment for perjury: State V. Spencer, 6 Or. 152; State v. Witham, 6 Or. 366. Essentials of indictment for pubjic nuisance: State v. Bergman, 6 Or. 341; State v. Hume, 12 Or. 133. Indictment for gambling need not name the game or de- vice, but must describe the device, and allege that it was adapted and used for playing games for money, etc. : State v. Gitt Lee, 6 Or. 425. Indictment for homicide in committing robbery need not allege that the killing was purposely done: State v. Brown, 7 Or. 186. Separate indictments cannot be made for taking of three articles belonging to the same person, at the same time and place: State v. McCormack, 8 Or. 236. Indictment for murder may state the facts generally, as provided by the Code: State v. Wintzingerode, 9 Or. 153. Use of singular instead of plural verb, where charge is evidently meant against all defendants, does not viti- ate: State V. Lee Ping Bow, 10 Or. 27. In an indictment for " stealing from and on the person," the phrase " and on " is surplusage merely: Id. Indictment for larceny need not use the word "steal"; " feloniously took and carried away" is sufficient: State V. Lee Yan Yan, 10 Or. 365. One present aiding and abetting may be convicted under indictment charging him directly with the act: State V. Kirk, 10 Or. 505. Indictment charging defendant with ha\'ing purposely, etc., killed the deceased " by then and there unlawfully and feloniously shooting him," the words " unlawfully C^tiMiNAL Law. 175 Criminal Law (continued). and feloniously " are surplusage, and the indictment charges murder in the first degree: State v. Abrams, 11 Or. 169. Indictment must be so drawn as to exclude any assump- tion that it may be proved and the defendant still be not guilty: State v. Smith, 11 Or. 205. Indictment for assault upon an officer of the penitentiary must allege knowledge that he was such officer: Id. Indictment for rioting, charging robbery also; the details related regarding the robbery are surplusage: State v. Tom Loney and Loo Wan, 11 Or. 326. It is sufficient for such indictment to allege that the de- fendants " did encourage other persons participating " in said riot to acts of violence and force: Id. The intent to defraud, in uttering forged paper, is the gist of the crime, and actual defrauding need not be proved: State V. Lurch, 12 Or. 99. In an indictment for forgery, the person defrauded need not be named; if named, must be proved as alleged: State v. Lurch, 12 Or. 104. Indictment for obstructing highway, when and how the termini and locus must be alleged: State v. Ilume, 12 Or- 133. Indictment found by a grand jury not legally called (under act of 1885) is invalid, and judgment of con- viction thereon must be reversed: State v. Lawrence, 12 Or. 297. In complaint for keeping bawdy-hohse, the phrase "will- fully and unlawfully" is equivalent to and implies "knowingly": Wong v. Astoria, 13 Or. 538. In complaint for violation of city ordinance (prior to 1885), the ordinance, or so much thereof as is relied upon, must be set forth or recited: Nodine v. Union, 13 Or. 587. Where the offense from its nature continues from day to day, it is sufficient to charge it as of any one day: State v. Sam, 14 Or. 347. '^ Indictment charging murder, as at common law, is suffi- cient to sustain verdict of murder in first degree under statute: Leschi v. Territory, 1 W. T. 13. The peculiar circumstances distinguishing murder in the 176 Criminal Law. Criminal La"w (continued). first degree under statute need not be set out in the in- dictment: Id. Indictment charging statutory offense unknown to the common law should charge the circumstances and in- tent mentioned in the statute, but the words of the stat- ute need not be used if equivalent words are used: Id. If some counts in indictment are good and some bad, ver- dict is presumed to be based on the good counts: Id. Where record shows that grand jury appeared in open court, and their foreman in their presence presented a true bill properly indorsed, it sufficiently appears that it was found by concurrence of at least twelve .jurors: Watts V. Territory, 1 W. T. 409. Oinission of word " feloniously " in charging homicide is not error, if the indictment follows the language of the statute: Id. Not necessary, in case of murder, that the records in the trial court show copy of indictment was served upon the prisoner: Lytle v. Territory, 1 W. T. 435; Leonard V. Territory, 2 W. T. 381. Indictment charging stealing, at same time and place, of a horse, the property of one M., and another horse the property of , charges but one offense, a single trans- action: Territory v. Hey wood, 2 W. T. 180. Objection to such indictment for charging double offense is waived by failure to demur: Id. Venue is sufficiently set out as being in King County by charging the offense was committed in Seattle, the court taking judicial knowledge of the fact that Seattle is in King County: Schilling v. Territory, 2 W. T. 283. Indictment for murder in the first degree must not only allege the assault and shooting to have been done pur- posely, and of deliberate and premeditated malice, but must charge the same of the killing itself: Leonard v. Territory, 2 W. T. 381. AVords in the conclusion of the indictment do not supply such essential averment, and are but an inference of the grand jury from their former statement, which the lan- guage will not admit: Id. Statute regarding liberal construction of criminal plead- ings does not, while doing away with the technicalities Criminal Law. 177 Ci'iminal Law (continued). of the common law, ignore the necessity of expressing the charge in adequate language: Id. Form of indictment for murder in the first degree given: Id. 4. Evidence. For opinion evidence, res gestae, character, admissions and declarations, confessions, and dying declarations, see Evidence. State need do no more than prove the substantive offense charged: Frisbie v. State, 1 Or. 248. Allegation of sale of whisky, being under a videlicet, will be supported by proof of sale of any kind of spirituous liquor: Id. Kind of liquor being stated under ridelicet, will excuse strict proof, unless essentially descriptive: Id. Allegations of names, sums, dates, and the like, must be strictly proven: Shirley v. State, 1 Or. 269. Receipt for sixty-five dollars, to prove allegation of forg- ing receipt for sixty dollars, is fatal variance: Id. Conspiracy to murder, evidence and instructions: State V. Fitzhugh, 2 Or. 227. Inconsistent statements of witness made at other times are not evidence of the facts stated in such declarations,. but simply tend to impeach his character for truth: Id. Refusal of court to allow a question tending to show hos- tility of witness; held, not to prejudice the defendant's rights under the circumstances of the case: Id. Not error for court to allow witness to inspect a writtea deposition made by her in a former examination before answering as to its contents: State v. Taylor, 3 Or. 10. Where conversations are admissible in evidence, the whole conversation may be admitted: Id. Reasonable doubt defined: State v. Conally, 3 Or. 69; State V. Glass, 5 Or. 73; State v. Ah Lee, 7 Or. 237; State V. Anderson, 10 Or. 448; State v. Abrams, 11 Or. 169; Smith v. United States, 1 W. T. 262; Leonard v. Territory, 2 W. T. 381. Burden of proof in homicide case, after the shooting pur- posely is shown, is on defendant to show justification or excuse; State v. Conally, 3 Or. 69. Rule in regard to reasonable doubt does not apply to jus- Ou. Dig.— 12 178 Criminal Law. Criminal Law (continued). tification or excuse, but defendant must show such de- fense by preponderance of evidence: Id. The question whether the killing was necessary to prevent felony is to be determined by preponderance of evidence: Id. Time, and kind of liquor sold need not be strictly proved; but where the name of the person to whom it was sold is stated in the indictment, it must be strictly proved: State V. Cutting, 3 Or. 260. Evidence of sale of liquor in violation of liquor license law: Id. The burden of proof is on the defendant to show that he is licensed: Id. Proof of shooting with revolver will sustain allegation of shooting with a pistol: State v. Dodson, 4 Or. 64. Threats and conduct of deceased, in homicide case, toward the prisoner some days before the killing, maj'^ be shown under defense of justification inproof of self-defense: Id. Prosecution need not prove the case to an absolute moral certainty, to the exclusion of any other hypothesis being true: State v. Glass, 5 Or. 73. When the charge is manslaughter, committed by attempt- ing to procure abortion, evidence of prior attempt of de- ceased to effect such purpose is immaterial, unless such attempt contributed to her death: Id. Evidence of attempts of prisoner to escape is admissible, and tends to prove his guilt: State v. Garrand, 5 Or. 216. On trial for assault with intent to kill, defendant cannot show in justification that prior to the affray he made complaint before a magistrate, and sought to have the assaulted party bound over to keep the peace: State v. Doty, 5 Or. 491. Evidence of dealing, playing, and carrying on faro, at one time, with the same parties, sustains indictment as one offense: State v. Carr, 6 Or. 133. Allegation of larceny of the property of A is not sustained by proof that the property belonged to A and B, as part- ners, unless a special ownership and possession in A is proved: State v. Wilson, 6 Or. 428. Laws of a foreign country must be proved as facts: State V. Moy Looke, 7 Or. 54. Criminal Law. 179 Criminal Law (continued). Unwritten law of a country cannot be proved by historical works, but by oral testimony, or published decisions: Id. Validity of a marriage under Chinese law, proved by documentary evidence, is a question for the court: Id. Proof of statement sworn to by person charged with per- . jury, differing in the date from the statement alleged in the indictment, is a material variance: State v. Ah Sam, 7 Or. 477. Testimony of accomplice will not alone warrant convic- tion: State V. Odell, 8 Or. 30. Proof that the prisoner was in the same town at the time is not sufficient corroboration: Id. Evidence in a homicide case of the fact that two guns were found after the shooting, secreted under the bed of the defendant, is admissible: State v. Wintzingerode, 9 Or. 153. Money of a kind known to have been possessed by the deceased may be shown to have been in the defendant's possession the day after the killing: Id. Evidence, if relevant to the issue, is not rendered inad- missible for the reason that it tends to prove the ac- cused guilty of collateral offenses: Id. Evidence that the person robbed had money shortly be- fore the alleged theft is admissible, when accompanied by evidence of the stealing from the person: State v. Lee Ping Bow, 10 Or. 27. Defendant offering himself as a witness in his own behalf subjects himself to the same rules of cross-examination as an ordinary witness, but may not be examined as to matters not testified to on direct examination: State v. Abrams, 11 Or. 169; State v. Lurch, 12 Or. 99; State v. Saunders, 14 Or. 300; Thompson v. Territory, 1 W. T. 547. The substance of contradictory statements only, imputed to a witness in the impeaching questions, need be proved to impeach him: Id. The conduct of a party, and what he did at the time, is competent evidence in the issue whether he was in- toxicated: Id. The presumption is, that evidence was admitted for proper 180 Criminal Law. Criminal Law (continued). purpose, where it was equally applicable to either of two purposes, one proper and the other not: Id. Experiments to furnish data for certain inferences must have been based on conditions similar to those existing in the case on trial: State v. Justus, 11 Or. 178. Experiments, made by non-professional witnesses, with a gun upon paste-boards, to show powder-burns, and to raise inference that deceased came to his death from near gunshot wound, inadmissible: Id. The admission of expert testimony upon the issue of whether the gun was fired near to deceased or from a distance, when the killing is not susceptible of direct proof: Id. , Upon trial for obtaining money by false pretenses, by giv- ing certain forged instruments, defendant may show that the signatures on the face of the notes were made by him in his own handwriting, by authority of the persons whose names were signed: State v. Lurch, 12 Or. 95. In forgery case, proof that the signature to the note is in a simulated hand is admissible, though the defendant admits signing it, claiming to have had authority: State v. Lurch, 12 Or. 99; S. C, 12 Or. 104. State cannot, after defendant testifies he did not sign, have him, on cross-examination, write his name for comparison: Id. In forgery, it is not necessary to name in the indictment the person defrauded, but having done so, the allega- tion must be proved as alleged: State v. Lurch, 12 Or. 104. Attention of witness may be called to inconsistent state- ments made at other times, and if he denies them, wit- nesses may be called to prove his having made them: State v. Lurch, 12 Or. 104; Thompson v. Territory, 1 W. T. 547. Declarations of hostility and contradictory statements are admitted to impeach a witness upon the same footing: State V. Mackey, 12 Or. 154. The only presumption arising from the possession of prop- erty recently stolen is one of fact, not of law: State v. Hale, 12 Or. 352. Criminal Law. 181 Criminal Law (continued). It may be sliown on cross-examination of a witness that be lias been convicted of crime, including felony and misdemeanor, and the record may be introduced to prove that fact: State v. Bacon, 13 Or. 143. Witness may be asked whether he has been arrested for commission of a certain crime, for purpose of discredit- ing the witness: Id. Proof that the accused had obtained a gun at a distant point, and was seen at different places before the murder, carrying it toward the place where the crime was com- mitted, is not rebutted by proof that he was seen with- out it at one place on the way, and such evidence is not admissible: State v. O'Neil, 13 Or. 183. In criminal cases, especially where life is involved, a lib- eral rule should be adopted in the receipt of evidence for the defense: Id.; State v. Mah Jim, 13 Or. 235. Any question which tends to show bias or prejudice of witness against the accused is competent: Id. Counsel should be allowed to pursue their own course in eliciting testimony so long as they keep within bounds: Id. To constitute the offense of frequenting an opium den would require more than one visit; how many is a question of mixed law and fact: State v. Sam, 14 Or. 347. Testimony of an accessary before the fact is not admissi- ble in behalf of the prisoner: Edwards v. Territory, 1 W. T. 195. Evidence of the dangerous character of the deceased is not admissible in homicide case where there is no evidence tending to show an assault or threatened assault on his part: Smith v. United States, 1 W. T. 262. The distinction between an exhibit and the testimony of a witness, whether oral or in writing, pointed out: Doc- tor Jack v. Territory, 2 W. T. 101. Court properly refused to admit on behalf of the defense a map to illustrate the situation, the saiBe being loaded with explanatory matter in the nature* of hearsay: Leonard v. Territory, 2 W. T. 381. 5. Defenses. That Congress has already passed a law for punishment 182 Criminal Law. Criminal Law (continued). of persons selling liquor to Indians is no bar to convic- tion under territorial statute for such offense: Territory V. Coleman, 1 Or. 191. The law of self-defense examined and discussed: Goodall V. State, 1 Or. 333; State v. Conally, 3 Or. 69; State v. Dodson, 4 Or. 64. Evidence of threats of threats of deceased as proving the killing, justifiable in homicide: State v. Dodson, 4 Or. 64. Conviction of disturbing the peace before city recorder no bar to a subsequent prosecution in the Circuit Court for assault and battery: State v. Sly, 4 Or. 277. Evidence that the accused, prior to the affray, made com- plaint before a magistrate, charging the assaulted party with having previously threatened his life, and asking to have him put under bonds to keep the peace, is not admissible in assault with intent to kill: State v. Doty, 5 Or. 491. Objection to the right of the trial judge to hold the office of judge cannot be made collaterally in a criminal case: State V. Whitney, 7 Or. 386. That an attorney employed to assist the prosecution was present before the grand jury when the indictment was found is no ground for reversal after judgment: Id.; State V. Justus, 11 Or. 178. Former conviction on an indictment for taking saddle and bridle is a defense to subsequent prosecution for larceny of horse at same time and place belonging to the same person: State v. McCormack, 8 Or. 236. Former conviction of assault and battery no defense to charge of kidnaping: State v. Stewart, 11 Or. 52; S. C, 11 Or. 238. Insanity as a defense to crime: State v. Murray, 11 Or. 413; McAllister v. Territory, 1 W. T. 360. Defendant accused of obtaining money by false pretenses by forged signatures to notes may prove that the sig- natures were written by him with authority: State v. Lurch, 12 Or. 95. 6. Instuuctions. The court is justified in instructing that there is no evi- dence on a certain point: Latshaw v. Territory, 1 Or. 140; State v. Garrand, 5 Or. 216. Criminal Law. 183 Criminal La^w (continued). No error to refuse to instruct on points on which there is no evidence: Latshaw v. Territory, 1 Or. 140; State v. Glass, 5 Or. 73; Doctor Jack v. Territory, 2 W. T. 101. It is error to instruct that if the liquor was given gratui- tously, it would sustain the indictment for selling with- out license equally as if it had been sold and paid for: Wood V. Territory, 1 Or. 223. Error to refuse to instruct that if the liquor was gratui- tously given, without consideration, the defendant could not be convicted: Id. Instructions as -to law of self-defense: Goodall v. State, 1 Or. 333; State v. Conally, 3 Or. 69. Instructions as to degree of certainty necessary to be proved, and reasonable doubt: State v. Conally, 3 Or. C9; State v. Glass, 5 Or. 73; State v. Ah Lee, 7 Or. 237; State V. Anderson, 10 Or. 448; State v. Abrams, 11 Or. 169; Smith v. United States, 1 W. T. 262; Leonard v. Territory, 2 W. T. 381. Where in homicide case there is no evidence to reduce the crime from murder in the first degree, the court may so instruct: State v. Garrand, 5 Or. 216; State v. Whit- ney, 7 Or. 386; Smith v. United States, 1 W. T. 262. But where the defendant does not admit the degree charged, and there is any conflict of testimony as to premeditation, it is erroneous to so charge: State v. Ah Lee, 7 Or. 237; State v. Whitney, 7 Or. 386; State v. Grant, 7 Or. 414. Instruction assuming that an admission on the trial that the deceased was killed by gunshot, at the time and place charged, was an admission that he was murdered, is erroneot^s: State v. Whitney, 7 Or. 386. Not error for the court to give the jury a general descrip- tion of the offense, although embracing njodes of com- mission not pertinent to the case, provided the defini- tion be subsequently given as applicable to the pleadings and testimony: State v. Anderson, 10 Or. 448. Where the court gives a correct definition of reasonable doubt, it is no error to refuse to give an equally correct one: Id. There is no difference between an occurrence "directly tending " to prove a prior fact, and one which " tends " 184 Criminal Law. Criminal Law (continued). to prove it, and an instruction based on a supposed distinction between them is immaterial: Id. The entire charge of the court must be considered to ascertain the meaning and effect of any particular por- tion excepted to: Id. It is error to instruct the jury not to regard '' mere slight variances " between the testimony of witnesses as af- fecting their credit: State v. Swayze, 11 Or. 357. Plea of not guilty puts in issue the fact of the killing as well as the premeditation and malice, and an instruc- tion assuming the killing proved is erroneous: State v. Mackey, 12 Or. 154. The phrase used in instruction, " You may consider this as a circumstance in determining the guilt or innocence of the defendant," does not imply that innocence is a fact to be established: State v. O'Neil, 13 Or. 183. Instruction as to intent to be judged by the jury, on trial under indictment for selling or offering for sale oleo- margarine unmarked, held not erroneous: State v. Dunbr.r, 13 Or. 591. Statement of the effect at common law of a disagreement of jury, and the mitigation of the rule in United States, with the remark that jury would have to stay together and not separate until verdict found, is hot objection- able as assuming the case was so plain that jury would not be justified in failing to agree: State v. Saunders, 14 Or. 300. The Supreme Court will not review erroneous instructions on mere abstract principles, of law: Yelm Jim v. Terri- tory, 1 W. T. 63. Bill of exceptions must show whether instructions given or refused were pertinent to the case, in order for Supreme Court to examine them: Id. Where a fact has been proved beyond all controversy, it is not error, in giving instructions, to mention it as a fact in the case: Edwards v. Territory, 1 W. T. 195. Where the court withheld instructions on manslaughter, telling the jury that if, having deliberated, they desired instructions on that subject, he would give them, no error was committed: Smith v. United States, 1 W. T. 262. Criminal Law. 185 Criminal Law (continued). Not error to refuse to instruct that where one of two combatantB kills a third person, who interferes without reasonjible notice to prevent one of the contestants from killing the other, such killing cannot b* murder in the first degree: McAllister v. Territory, 1 AV. T. 3G0. The court properly refused to instruct the jury that if, while two persons are engaged in fighting, a third per- son assaults one of the combatants, and is killed by him, such killing is no more than manslaughter: Id. Court may, after the return of the jury into court with their verdict, but before the reception of the same, cor- rect any erroneous instruction that may have been given, and send them back again to deliberate: Doctor Jack V. Territory, 2 W. T. 101. There being no evidence in the case to show that the fatal blow was accidental or given in self-defense, it was not necessary for the court to qualify its instruc- tions to meet such evidence: Id. Instructions that jury might assume, if the name of the owner of property stolen is unknown to them at time of trial, that it was unknown to the grand jury at time indictment was found, is not erroneous: Territory v. Heywood, 2 W. T. 180. Instruction that the fact that prisoner does not disprove circumstances, if the jury believe he has the means of disproving them if false, lends additional weight to such as are proved, is erroneous: Leonard v. Territory, 2 W. T. 381. Instruction not leaving jury to find whether the killing was justifiable or excusable is erroneous: Id. So an instriK^tion that does not make malice essential to either degree, or inform the jury that in order to con- stitute murder in either degree, the malice, and not merely the killing, must be deliberate and premed- itated, does not correspond with the law: Id. 7. Practice and Incidknts of Trial. Court may amend the record during the term to conform with the facts: Howell v. State, 1 Or. 241. Continuance not granted where it is not satisfactorily shown that the evidence can probably be had at the next term: State v. Leonard, 3 Or. 157. 186 Criminal Law. Criminal Law (continued). Error to receive verdict in the absence of the prisoner in a felony case: State v. Spores, 4 Or. 198. The trial includes the rendition and receiving of the ver- dict: Id. Court has power to communicate with jury through the bailiff while deliberating, and such action will not be ground for reversal where no injury was occasioned: State V. Garrand, 5 Or. 216. Motion to quash indictment on account of a stranger having been present during the proceedings before the grand jury, is properly overruled, and such objections are waived by going to trial without objecting: State v. Whitney, 7 Or. 386; State v. Justus, 11 Or. 178. Omission to provide for presence of defendant or his counsel, on view by the jury, is not error where not requested: State v. Ah Lee, 8 Or. 214. Verdict may be received, notwithstanding counsel for defendant is absent: State v. Lee Ping Bow, 10 Or. 27. Improper remarks of district attorney must be objected to, and exception saved at the time: Id. Record showing that defendant was " given an opportu- nity to make a statement " before sentence, sufficiently shows that he was asked "if he had anything to say why sentence should not be passed": State v. Cart- wright, 10 Or. 193. Witness examined by the grand jury, whose name is not put on the indictment, may, nevertheless, be examined by the prosecution where the defendant was not thereby misled: State v. Anderson, 10 Or. 448. Mere objection and exception to improper remarks of the district attorney will not avail: Id.; State v. Abrams, 11 Or. 169. Record held sufficient as to arraignment: State v. Abrams, 11 Or. 169. Time of trial may be set by the court when the defendant is not present: Id. Keeping shackles on prisoner during trial, without evident necessity, when objected to, is error: State v. Smith, 11 Or. 205. Granting or refusing continuance is discretionary: State V. O'Neil, 13 Or. 183; Thompson v. Territory, 'l W. T. 647. Criminal Law. 187 Criminal Law (continued). In adidavit for continuance, it is not sufficient to allege belief that witness can be had; but the affidavit must show the grounds for the belief: Id. Trial of prisoner without entering his plea is ground for reversal: Palmer v. United States, 1 W. T. 5. Record showing that the jury was "duly sworn," suffi- ciently shows that the proper oath was administered: Lesehi v. Territory, 1 W. T. 13. Courts have power to restrain counsel and keep them within proper limits: Id. It sufficiently appears by the record in this case that the defendant was present when verdict was rendered and sentence passed: State v. Cartwright, 10 Or. 193; Lesehi V. Territory, 1 W. T. 13. Where the record shows the impaneling of grand jury void, an indictment returned by it is a nullity, and the court should stay the proceedings as soon as its at- tention is directed thereto: Yelm Jim v. Territory, 1 W. T. G3. If objection to a jtiror be not taken at the time of impan- eling the jury, it is waived: Clarke v. Territory, 1 W. T. 68. Arraignment defined; it cannot be waived in murder case: Elick V. Territory, 1 W. T. 136. Consent of counsel to enter plea of not guilty will not dis- pense with arraignment: Id. Prisoner must personally enter his plea, unless shown to be incapacitated: Id. In the trial of one unacquainted with the English lan- guage, a sworn interpreter should be provided: Id. In such casevthe charge must be explained, and the plea entered through the interpreter, who must also make known the evidence to the accused, as the trial proceeds: Id. Record not showing prisoner in court when verdict was returned, or showing that disposition was made of the jury in adjourning from day to day, is insufficient: Shapoonmash v. United States, 1 W. T. 188. Not error to submit to jury written charge of the court, or permit them to take statutes to the jury-room: Edwards V. Territory, 1 W. T. 195. 188 Cetmtnal Law. Criminal Law (continued). The court is always deemed open for the purposes con- nected with a cause submitted to a jury, and may re- ceive verdict after adjournment at night and before the meeting of court the next morning: Id. Not error to place jury in charge of a sworn officer of the court, who has been called upon to testify for the terri- tor}^ on the trial: Id. Allowing one or more jurors to retire from the jury-room for a necessary purpose, under the direct super^'ision of the officer, is not regarded as a separation of the jury: Id. It is competent for the prosecuting officer of the United States to enter a nolle any tim^ before verdict: Smith V. United States, 1 W. T. 262. Errors committed under an indictment discharged cannot be taken advantage of under a subsequent indictment, unless proper objection be made under the latter indict- ment: Id. It is not necessary in murder case that the records show that copy of indictment was served on the defendant: Lytic V. Territory, 1 W. T. 435. Addition of the words "and the law as given by the court" to the statutory oath to jury, is not error: Harti- gan V. Territory, 1 W. T. 447; and see Leonard v. Ter- ritory, 2 W. T. 38L Separation of jury in capital case, with consent of defend- ant and prosecuting attorney, is of doubtful propriety, but no ground for reversal unless shown to have been an injury: Id. Where the defendant and his counsel have consented to separation of jury, they should be estopped to object thereto: Id. The object of the statute that the accused "shall be tried at the next term of court after he was imprisoned " was to secure speedy trials, and not to promote delay: Thomp- son V. Territory, 1 W. T. 547. One charged with crime is entitled to continuance only in case he make the showing therefor required in other cases: Id. Court may, before verdict is received, though after jury returns into court 'therewith, correct the instructions Criminal Law. 189 Criminal Law (continued). given, and send the jury back for further deliberation: Doctor Jack v. Territory, 2 W. T. 101. Not error to permit jury to take to jury-room hat and gar- ment offered in evidence: Id. The intention of the statute allowing the jury to take to the jury-room all papers admitted in evidence is to allow them to take all exhibits admitted in evidence: Id. 8. Appeal and Error in Criminal Cases. The plea in millo est erratum, in proceedings on error, oper- ates as a demurrer, not as a confession: 0' Kelly v. Ter- ritory, 1 Or. 51. Court may aflfirm or reverse judgment, but not modify it: Howell V. State, 1 Or. 241. As a general rule affirmance is final, but court will hold discretionary control of the case for purposes of a re- hearing: McDonald v. Crusen, 2 Or. 259. Statement of errors relied on is not necessary in the notice of appeal; rule adopted requiring the same to be fur- nished on demand: State v. Ellis, 3 Or. 497. Bill of exceptions must show that the question was raised and passed upon by the Circuit Court: State v. Dodson, 4 Or. G4. Order to be appealable must affect a substantial right and determine the action: State v. Brown, 5 Or. 119. How notice must be served when the state appeals: Id. An appeal does not vacate the judgment appealed from: Whitley v. Murphy, 5 Or. 328. When appeal abates by death of the accused the judgment remains in full force: Id. When defendant appeals from Justice's Court, the appeal is taken ae in civil cases, except that notice is to be served on the district attorney or private prosecutor: State V. Zingsem, 7 Or. 137. On appeal to Circuit Court, if appellant fails to file origi- nal notice with proof of service, in the Justice's Court, and no appeal is allowed or transcript filed, no appeal is .taken, and Circuit Court can enter no judgment against defendant or his sureties: Id. The provisions of section 531 of Civil Code (sec. 541, Hill's A. L.) do not affect appeals in criminal cases: State v. Bovee, 11 Or. 57. 190 Criminal Law. Criminal Law (continued). Appeal in criminal cases, taken during a term of the Su- preme Court may, in its discretion, be heard at same term: Id. Order enlarging the time within which clerk must prepare and transmit transcript must be made by the trial court: Id. In suing out writs of error, where service on the United States is necessary, the United States attorney must be served; service on his assistant will not avail: Bennet V. United States, 2 W. T. 179. Where United States is a party, the rule of practice of the common law, modified to be applicable, should govern, -the legislature not having provided a rule of practice: Id. The Supreme Court will take no notice of an ex parte affi- davit filed with the papers of the case, but not embodied in the bill of exceptions: Fox v. Territory, 2 W. T. 297. Overruling motion for new trial cannot be alleged as error: Brown v. State, 1 Or. 270; State v. Fitzhugh, 2 Or. 227; State V. Wilson, 6 Or. 428; State v. Mackey, 12 Or. 154; State V. Becker, 12 Or. 318; Wassissimi v. Territory, 1 W. T. 6; Smith v. United States, 1 W. T. 262. Court is bound by the record, and will not search for error outside thereof: O'Kelly v. Territory, 1 Or. 51; State v. Wilson, 6 Or. 428. Court will presume evidence supported instruction given, where bill of exception does not purport to give all the evidence: State v. Lee Yan Yan, 10 Or. 365. Motion based on facts therein stated, but not otherwise appearing in the record, cannot be considered on appeal: • State V. Anderson, 10 Or. 448. No objection to the proceedings in the Circuit Court in any case can be considered in the Supreme Court, which has not in. effect been passed upon by the lower court: State V. Abrams, 11 Or. 169. Where evidence was admitted without objection, it is pre- sumed to have been admitted for a proper purpose rather than an improper, when applicable to either: Id. Where the error did not prejudice appellant, reversal will not be granted generally; but where the error violates Custody of Children. 191 Criminal Law (continued). a constitutional guaranty of personal liberty, the law will presume an injury: State v. Lurch, 12 Or. 99. Action of trial court in accepting a juror challenged will not ordinarily be reviewed on appeal: State v. Saunders, 14 Or. 300. Motion in arrest of judgment, made and afterwards waived in the lower court, cannot be considered on appeal: Freany v. Territory, 1 W. T. 71. Alleged error must be presented by bill of exceptions, or cannot be considered on appeal: Hartigan v. Territory, 1 W. T. 447. Bill of exceptions must show whether instructions were pertinent before error in giving or refusing them will be considered: Yelra Jim v. Territory, 1 W. T. G3. Instructions must have been excepted to at the time when given, to be considered on appeal: Smith v. United States, 1 W. T. 262. It is not necessary that the journal entries in a criminal case show affirmatively that a copy of the indictment was served on the defendant, and the defendant should take advantage of any such irregularity at the time, and if the objection is overruled, the fact should be preserved by a bill of exceptions: Lytle v. Territory, 2 W. T. 435. Alleged error in admitting dying declarations cannot be reviewed : Hartigan v. Territory, 1 W. T. 447. Only final orders, judgments, and decrees are reviewable: Conway v. United States, 2 W. T. 336. Crops. See Executions and Proceedings Supplemental; Landlord and Tenant; Mesne Profits. Cross-bills. S^e Equity. Cross-examination. See Witnesses. Cruelty. See Divorce. Curtesy. Curtesy attaches to an equitable estate in the wife: Gil- more V. Gilmore, 7 Or. 374. It is no fraud on creditors for a husband to bar his cur- tesy by joining his wife in a deed on sale of her land: Besser v. Joyce, 9 Or. 310. Custody of Children. See Divorce. 192 Customs. Customs. Local customs must be alleged and proved; court does not take judicial notice: Lewis v. McClure, 8 Or. 273. No evidence in this case to establish custom of delivery of goods at the port of Olympia: Williams v. Steam- ship Columbia, 1 W. T. 95. Damages. See Conversion; Fraud and Deceit. When in action on contract the contract furnishes the measure of damages, no other will be adopted: Zach- ary v. Swanger, 1 Or. 92. Price paid is the measure for breach of warranty of title to personalty: Arthur v. Moss, 1 Or. 193. On affirmance of judgment on error, allowance of dam- ages under the statute is denied when it is uncertain whether the writ of error was taken in good faith or not: Coffin v. Ilanner, Jennings, & Co., 1 Or. 236. In suit against city for damages, a resident and tax-payer in city is not competent juror: Garrison v. Portland, 2 Or. 123; Portland v. Kamm, 5 Or. 362. Jury instructed that plaintiff was entitled to damages for his whole injury or nothing: Heath v. Glisan, 3 Or. 64. Loss of time, money expended or debts incurred, and bodily pain, the elements of damage for personal inju- ries: Oliver v. N. P. T. Co., 3 Or. 84. The object of damages for personal injury is compensa- tion: Id. Exemplary damages denied: Id. Damages for breach of covenants, in deed; measure, and recovery: Stark v. Olney, 3 Or. 88; Arrigoni v. John- son, 6 Or. 167. For building railroad through land, and appropriating land: Oregon Central R. R. Co. v. Wait, 3 Or. 91; Ore- gon etc. R. R. Co. V. Barlow, 3 Or. 311. For building canal, same: Willamette Falls L. & C. Co. V. Kelly, 3 Or. 99. Jury instructed not to compromise contrary to convictions of truth: Boydston v. Giltner, 3 Or. 118. Release of doubtful claim is suflicient consideration for release of claim for damages: Williams v. Poppleton, 3 Or. 139. Damages for surgical malpractice: Heath v. Glisan, 3 Or. Damages. 193 Damages (continued). 64; Boydston v. Giltner, 3 Or. 118; Williams v. Popple- ton, 3 Or. 139. Wliere there was some evidence to show amount of dam- ages found, new trial denied: Williams v. Popplcton, 3 Or. 139. In slander, plea of truth as defense, if not proved, is an aggravation of damages: Shartle v. Hutchinson, 3 Or. 337. Special damages for loss of prospective earnings, insuffi- cient pleading: Brown v. Moore, 3 Or. 435. Damages and compensation under ditch law of 1868 (c. 39, tit. 1, Hill's A. L.): Seely v. Sebastian, 4 Or. 25. Proof of damages where judgment in default is rendered in action for breach of contract, is unnecessary: White V. Northwest Stage Co., 5 Or. 99. Damages for breach of contract, where the breach is total, may be given for the future as well as the past, though the time for full performance has not elapsed: Tippin V. Ward, 5 Or. 450. Damages and benefits in an action for opening a street; evidence and instructions: Portland v. Kamm, 5 Or. 362; Portland v. Lee Sam, 7 Or. 397; Portland v. Kamm, 10 Or. 383. Damages and benefits must be assessed separately in action reviewing proceedings to lay out a street: Port- land V. Kamm, 5 Or. 362. Essential allegations in an action for damages for false rep- resentations: Rolfes V. Russel, 5 Or. 400. Price paid by vendee for an outstanding paramount title is the measure of damages for breach of covenant of warranty: Arrigoni v. Johnson, 6 Or. 167. Measure of damages for establishing a road over private property: Terwilliger v. Multnomah Co., 6 Or. 295; Put- nam V. 'Douglas Co., 6 Or. 328. Measure of damages for overflowing plaintiff's land by erecting a dam: Marsh v. Trullinger, 6 Or. 356. May be sued for by person specially injured by obstruct- ing highway with toll-gate : Milarkey v. Foster, 6 Or. 378. What damages are recoverable by mail carrier for ne- glect of company under its grant from the United States On. Dio.— 13 194 Damages. Damages (continued). to properly build the Dalles Military Road: Schultz v. Military Road Co., 7 Or. 259. Where the contract specifies the damages to be paid, all other damages are excluded: Lung Louis & Co. v. Brown, 7 Or. 326. Forfeiture of five cents per cord on wood contract stipu- lated is liquidated damages: Id. Subsequent attachment and sale by the same person may be shown in mitigation of damages, in an action against him for seizing the goods under a void attachment: Morrison v. Crawford, 7 Or. 472. County Court has power to assess damages for taking of road material by supervisor from private lands for re- pairs: Kendall v. Post, 8 Or. 141. The statute (sec. 29, c. 50, Mis. Laws, sec. 4093, Hill's A. L.) providing therefor is not unconstitutional for not providing trial by jury: Id. Measure of damages for breach of warranty of engine is the damage naturally resulting: Drake v. Sears, 8 Or. 209. Expense in putting up the defective engine and incurred by its failure to do the work, recoverable: Id. Profits of business not an element of damage unless con- templated by parties: Id. Damages for failure of county clerk to record mortgage: Howe V. Taylor, 9 Or. 288. Refusal to allow certain evidence to reduce damages; held, an immaterial error where answer admitted damages to the extent found by the verdict: Smith v. Cox, 9 Or. 475. Special damages for conversion not having been alleged, evidence or instructions relating thereto are irrelevant and erroneous: Salmon v. Olds and King, 9 Or. 488. Profits that would necessarily have followed from the con- tract are actual damages recoverable when completion of the contract is prevented, and need not be pleaded specially: Wisner v. Barber, 10 Or. 342. Exemplary damages may be recovered in action for as- sault and battery where malice is shown: lieneky v. Smith, 10 Or. 349. Proof of social and pecuniary circumstances of defendant admissible in such cases: Id. Damages for breach of building contract include loss of DAaiAQES. 195 Damages (continued). rents and cost of completion, less amount payable under the contract, and the value of materials on hand: Sav- age V. Glenn, 10 Or. 440. Exemplary damages for an act of servant, though willful and malicious, cannot be recovered from master unless he authorized or ratified the act, or unless chargeable with gross carelessness in the employment or retention of such servant: Sullivan v. Oregon R'y & N. Co., 12 Or. 392. Exemplary damages are recoverable only when complaint alleges malicious or wrongful act or reckless indiffer- ence: Id. Measure for breach of contract to buy standing timber suitable for piling and ties is difference between con- tract and present market price: Mackey v. Olssen, 12 Or. 429. Right of way ha\ang been given to the purchaser to reach the timber purchased, the cost of building a road is not an element of damage for breach on his part: Id. Partial failure of consideration may be set up as a de- fense to an action on a bill of exchange, and the defend- ant recoup his damages, though unliquidated : Davis v. Wait, 12 Or. 425. Prescriptive right to raise water to a certain stage is no defense to an action for damages for raising such stream above that stage: Tucker v. Flouring Mills Co., 13 Or. 28. Where verdict for damages is excessive, it is the duty of the court to set it aside; but its refusal to do so cannot be reviewed on appeal: Nelson v. Oregon Railway etc. Co., 13 Or. 141. Except wher^ appellant has abandoned his appeal, dam- ages are not allowed unless the appeal clearly appears to have been for delay: Id. When damages are claimed in an action of replevin, and plaintiff recovers, the verdict is not defective that fails to find upon that question: Prescott v. Heilner, 13 Or. 200. In such case it is presumed that the jury concluded that no damages were sustained: Id. 31arket value is the measure of damages for destruction 196 Damages. Damages (continued). of things that have Buch value: Prettyman v. Railway etc. Co., 13 Or. 341. But for property having no market value, for which recov- ery can be had, a different means of valuation must be resorted to: Id. y When attorneys' fees are recoverable as part of damagte in an action on an injunction bond: Olds v. Gary, 13 Or. 362. Claim for damages against a city for injury upon defect- ive walk is not such a claim as must first be presented and disallowed by the city council before suit: Sheridan V. Salem, 14 Or. 328. Municipal corporation is by statute liable for damages for injuries received by reason of its failure to keep streets in repair, unless specially exempted by its charter: Id. In such action, evidence of repairing the locu8 in, quo, by the officers of the city, is admissible on the question whether the walk was a common thoroughfare main- tained by the city: Id. Measure of damages in action under statute giving female over twenty-one years of age a right of action for her own seduction, is her entire loss, pecuniary, and in rep- utation and character: Breon v. Henkle, 14 Or. 494. Damages in such case are not recoverable where both par- ties were equally guilty, but only where the defendant employed such artifice and deceit as was calculated to and did mislead a virtuous woman: Id. Where a railroad company obtained right of way over a tract of land from one, by mistake supposing him the owner, and then entered and built its road over the same, the improvements so erected cannot be taken into consideration to enhance damages, in favor of the de- fendant in a suit afterwards brought against the true owner for condemnation: O. R. & N. Co. v. Mosier, 14 Or. 519. Rights of consignee against common carrier for damages for injuries to goods injured in transit: Williams v. Steamship Columbia, 1 W. T. 95. If sheriff make a false return, the party injured thereby has his action against the sheriff for damages: Wash- ington Mill Co. v. Kinnear, 1 W. T. 99. Damages. 197 Damagres (continued). The right to damages on a replevin bond stated: Boyer v. Fowler, 1 W. T. 101; Meigs v. Keach, 1 W. T. 305. Withholding dower entitles the claimant to damages:' Ebey v. Ebey and Beam, 1 W. T. 185. No statutory method of admeasuring such damages be- ing prescribed, that adopted by the lower court ap- proved: Id. In an action for malicious prosecution and arrest, plain- tiff cannot be asked to state the amount of damages he sustained ; it is for the witness to state the facts and for the jury to estimate the damages: Ferguson v. Tobey, 1 W. T. 275. In mitigation of damages claimed for continued imprison- ment, it may be shown that plaintiff refused to be lib- erated on bail: Id. Vendor who by oral contract has agreed to sell land to a person, the agreement being so far consummated that the latter is entitled to specific performance, is liable in damages if he subsequently fraudulently conveys to another: Willey v. Morrow, 1 W. T, 474. The measure of damages in such case is the value of the land at time of the fraudulent conveyance: Id. Woman injured on board a vessel by negligence of the officers can maintain libel in rem against the vessel for her damages: Phelps v. City of Panama, 1 W. T. 518. The method of ascertaining the damages in such case set forth: Id. Collision between vessels, occasioned by fault of both, the aggregate of damages should be borne equally by the vessels: JNIbigs and Talbot v. Steamship Northerner, 1 W. T. 78; Puget Sound C. Co. v. Taylor, 2 W. T. 93. Action for damages for breach of contract to furnish liquors to be sold in violationof license law cannot be maintained by unlicensed liquor dealer: Bach, Messe, & Co. v. Smith, 2 W. T. 145. In action by tenant against landlord for damages for fail- ure to rebuild after premises are destroyed by fire, un- der lease for term of years providing that tenant is to make repairs, damages by elements excepted, an an- swer admitting the lease admits the right to nominal damages at least: Hadlan v. Ott, 2 W. T. 165. 198 Damages. Damages (continued). On motion of plaintiff in such case for judgment on the pleadings, the court properly awarded nominal dam- ages: Id. On failure to furnish brick under contract, the measure of damages is the difference between contract price and price necessarily paid by the plaintiff for brick to finish his building: Sweeney v. Jamieson, 2 "\V. T. 254. Where such contractor agreed to furnish a superior qual- ity of brick for ornamental work on the building, and failed to do so, the plaintifif is entitled to recover for lessened value of building on account of the absence of ■such superior brick: Id. But if, on the failure of the contractor to furnish such superior brick, plaintifT made no effort to obtain them elsewhere, but changed his plan of building, he is not entitled to such additional damages: Id. In the absence of statute, the liability of a city for in- juries received by reason of failure to repair streets is in dispute in different states, but in Washington Territory, following the opinion of the United States Supreme Court, the action may be maintained: Hutchinson v. Olympia, 2 W. T. 314. Vendor of lots is liable to damages for deceit for fraudu- lently conveying lots of little value to purchaser after pointing out to the latter other more valuable lots, and inducing him to believe them the lots to be sold: Phin- ncy V. Hubbard, 2 W. T. 369. Measure, in sucli case, is the difference in value between the property purported to be sold and that actually sold: Id. Dams. See ^lills; Water and Watercourses. Breakwater and dam are part of mill, so that a mechanic's lien attaches to mill for work thereon: Willamette Falls etc. Co. V. Remick, 1 Or. 1G9. Right to use water implies right to dam and reasonably detain the water, but not to divert it: Oregon Iron Co. V. Trullenger, 3 Or. 1. In action for damages for overflowing land by erecting a dam, the elements for which damages are recoverable: Marsh v. Trullenger, G Or. 356. Agreement construed to permit the raising of a dam where Dedication. 199 Dams (continued). necessary to the enjoyment of mill privilege: Brugger V. Butler, 6 Or. 459. Injunction against overflow caused by dam not granted where plaintifl's right was doubtful: Tongue v. Gaston, 10 Or. 328. Injunction will be allowed against owner of overflowed ■ land to restrain drainage thereof, when overflow is caused by dam of a mill-owner who has no right to overflow the lands by grant, license, or prescription: Wattier v. Miller, 11 Or. 329. Covenant in a deed for division of water, and to repair and maintain certain dams, construed: Salem Co. v. Salem F. M. Co., 12 Or. 374. Injunction refused, to prevent one, jointly owning with another, rights to a stream, from building dam, but suit to compel equal division of water may be maintained: Id. Days of Grace. See Bills and Notes. Debtor and Creditor. See Assignment for Benefit of Cred- itors; Bankruptcy; Composition; Insolvency. Deceased Persons, Estates of. See Administration; Ad- ministrators and Executors. Deceit. See Damages; Fraud and Deceit. Declarations. See Evidence. Decree. Appeal and Error; Equity; Judgments and Decrees. Dedication. No particular time necessary to establish: Parrish v. Stephens, 1 Or. 59. User by the public with assent of owner for such time that ajLJnterruption would be an injury, sufiicient to establish: Id. Private buildings erected on public ground, the legal title to which is in the public by dedication, may be removed by the public, but are not public property: Id. Conditional dedication docs not take effect or bind after- ajcquired land if condition fails: Id. Dedication by occupant prior to Donation Law does not bind subsequent occupant: Lownsdalc v. Portland, 1 Or. 397. Exhibition and publishing of plat with spaces marked as streets and public squares is evidence of: Id. 200 Dedication. Dedication (continued). Proof of, by casual conversations and remarks of pro- prietor, to be closely scrutinized: Id. Public dedication not presumed, must be shown by clear proof: Id. Adoption of map by city, not including as a street the strip in controversy, binds the city: Id. Map relied on to prove dedication must be shown to have been made or assented to by donors: Leland v. Port- land, 2 Or. 46. To be binding on proprietors of town site of Portland, dedication must have been made since September 27, 1850: Id. Laying off streets and blocks, and selling blocks abutting on street, is dedication of street: Portland v. Whittle, 3 Or. 126. Dedicator and his successors in interest are bound: Id. Subsequent assent of dedicator cannot change street to public square: Id. May be by parol; must be acts evincing clear intention: Carter and Mason v. Portland, 4 Or. 339. What acts sufficient to constitute parol dedication: Id. Formal acceptance by city not necessary; where the dedi- cation is irrevocable, it need not be followed by imme- diate and continued user by the city: Id. Nothing in the Oregon road laws limits or alters the right to dedicate roads: Douglas County Road Co. v. Abra- ham, 5 Or. 318. Continued and uninterrupted user for greater period than the statute of limitations is evidence of the existence of the highway: Id. But see Smith v. Gardner, 12 Or. 221. Slight change in the thread of the road will not defeat riglits of the public: Id. Public levee, duly dedicated, cannot be taken by railroad company for depots without consent: Oregon R'y Co. V. Portland, 9 Or. 231. Owner of a tract conveyed by metes and bounds acquires no title to the soil of a street subsequently dedicated by his grantor, adjoining his tract: Knott Bros. v. Jef- ferson St. Ferry Co., 9 Or. 530. Dedication. 201 Dedication (continued). Owner may make qualified dedication of road; may re- serve right to keep a gate across: Smith v. Gardner, 12 Or. 221. Permissive use of a way by portions of the community is a license, not a dedication: Id. User and improvement for statutory period by city of a " road witliiu the city limits is not sufficient proof of acquiescence of owners to the use thereof as a street: Heiple v. East Portland, 13 Or. 97. Facts examined, and held not to establish an intent to dedicate such road as a street: Id. Grant or license to railroad company by legislative act to use a previously dedicated public levee in a city for terminal depots and docks, with reasonable limitations providing for the protection of the rights of the public, is not invalid as diverting the use of the property as dedicated, and is in aid of such use: P. & W. V. R. R. Co. V. Portland, 14 Or. 88. The power of the legislature over property dedicated to public use is not absolute; it may regulate the use of the property or promote its improvement, but not divert the use from that for which dedicated: Id. Upon such diversion, any person interested would be authorized to institute proper proceedings to enjoin it: Id. Upon vacation of an alley, once dedicated to the pub- lic, by municipal corporation, the fee to the soil vests in equal proportions in abutting lot-owners: Burmeister V. Howard, 1 W. T. 207. But if a di^rent disposition of such vacated alley be made by ordinance upon petition of all the abutting owners, they are estopped thereby from setting up any claim in contravention to such ordinance: Id. Recorded plat of town, clearly defining streets thereon, will not operate as dedication of a strip inclosed by lines on such plat, and marked "C," thougli extending from one street to another, and having lots abutting on it: Robinson v. Coffin, 2 W. T. 251. Such inclosure of the space indicates an intention to with- hold the land from public use: Id. 202 Deeds Deeds. See Acknowledgments; Boundaries; Contracts; Es- toppel; Mistake and Accident; Mortgages; Reformation; Specific Performance. 1. The Contract to Convey. 2. Execution and Delivery. 3. Consideration. 4. Description of Premises. 5. Covenants. 6. Interpretation and Construction'. 7. Recording. 8. Validity and Effect. 1. The Contract to Convey. Agreement to convey free of encumbrances; grantor must record releases of mortgages or oth6r liens on the prop- erty before he can tender deed: Knighton v. Smith, 1 Or. 276. Vendor must tender deed, and vendee must tender price and make demand, before action lies by either: Guthrie V. Thompson, 1 Or. 353. Mere agreement to sell does not give license to purchaser to enter: Lee v. Summers, 2 Or. 260. Agreement to make quitclaim deed, when the grantor obtains title from a certain source, does not estop him from purchasing and holding an outstanding title: Shively v. Welch, 2 Or. 288. Time is not of the essence of the contract, uriless the lan- guage clearly indicates such to have been the intention of the parties: Knott v. Stephens, 5 Or. 235; Snider v. Lehnherr, 5 Or. 885. When title is defective, and an incumbrance is on the land, offer of a warranty deed by the vendor is not a performance of a contract to convey by good and suffi- cient warranty deed: Collins v. Delashmutt, 6 Or. 51. When title is derived through unrecorded deed, it is de- fective, and Vendee need not accept: Id. On breach by one party, the other need not specify in his notice of rescission the breaches relied on: Id. Party in possession under imperfect deed may be granted specific performance, and in such case the deed is con- strued a contract to convey: Hill v. Cooper, 6 Or. 181. Agreement to convey land, mill, etc., held to permit the raising of the dam where necessary to the user of the privilege granted: Brugger v. Butler, 6 Or. 459. Deeds. 203 Deeds (continued). Possession under an agreement to convey, the descrip- tion being defective, held sufficient identification in a suit for specific performance: Richards v. Snider, 11 Or. 197. Covenants to purchase certain property on or before five years, and that on payment the other party will make good and sufficient deed, are dependent covenants, and require performances or tender by either party before suit: Powell v. D. S. & G. R. R. R. Co., 12 Or. 488; S. C, 14 Or. 356. Bond for a deed operates to convey equitable title to ven- dee, and the vendor holds the legal title as mere secu- rity for the pavmeut of his debt: Burkhart v. Howard, 14 Or. 39. Such vendee mortgaging the land conveys thereby to his mortgagee his security to the extent of the mortgage: Id. In such case, the assignee after maturity of the vendee's notes acquires no more right than his assignor, and this, notwithstanding the mortgage was not recorded until afterwards: Id. Where the terms of the contract require no more than that the vendor convey all the title he has, the vendee can insist on no more: Thompson v. Hawley, 14 Or. 199. Contract for conveyance of land upon payment of certain sums gives vendee option on default of vendee to ten- der deed and sue for the money, or to foreclose the rights of the vendee under the contract: Wood v. Mas- tick, 2AV. T. 64. 2. Execution and Delivery. Deed of corporation must be sealed with corporate seal, and purport to be act of the corporation: Eagle Woolen Mills Co. V. ]\Ionteith, 2 Or. 277. But seal need be in no particular form, and words stating that the corporation afiixed it, not indispensable: Id. Deed executed by agent must be executed in name of principal: Id. Sheriff in office when deed is due may execute the same after time for redemption: ^loore v. Willamette T. & L. Co., 7 Or. 359. Deed of a corporation, sealed with its seal and subscribed 204 Deeds. Deeds (continued). by its president and secretary, declaring that they sub- scribe it for the corporation, will convey title: Id. Certificate of proof of execution of unacknowledged deed must show that the witnesses were sworn and state the facts: Mclntyre v. Kamm, 12 Or. 253. Delivery is essential, whether consideration be good or valuable: Fain v. Smith, 14 Or. 82. Delivery defined; the intention is the controlling element: Id. After execution and acknowledgment, words or circum- stances decisive of the intention of the grantor to con- summate and part with deed constitute a delivery: Id. Evidence considered and held to establish the execution and delivery of deed to the plaintiff: Teller v. Brower, 14 Or. 405. 3. Consideration. Parol proof admissible to prove actual consideration dif- fering from that in deed: Brown v. Cahalin, 3 Or. 45. That expressed is prima facie the actual price, but pre- sumption is disputable: Stark v. Olney, 3 Or. 88. Conveyance in consideration of marriage is not a voluntary conveyance: Bonser v. Miller, 5 Or. 110. Payment of an existing mortgage to which the deed is subject, and which is recited in the deed, is a valuable consideration as against creditors: Miles v. Miles, 6 Or. 266. Contract to support grantor, in consideration of convey- ance, will be enforced in equity, and the land charged, though a money consideration is expressed in the deed: Watson V. Smith, 7 Or. 448. Deed of bargain and sale must be supported by a con- sideration which should be expressed therein: Lambert V. Smith, 9 Or. 185. If not expressed in the deed, it may be averred and proved, but it must exist: Id. The seal does not remove the necessity to prove the exist- ence of the consideration: Id. Deed made between parties to divorce suit, in considera- tion of not defending, is against public policy, and mistake therein will not be corrected in equity: Phillips y. Thorp, 10 Or. 494. Deeds. 205 Deeds (continued). 4. Description of Premises. Ascertained boundaries and monuments control measure- ments, either of lines, surfaces, or angles: Lewis v. Lewis, 4 Or. 177. Locality at which a lost stake was set may be ascertained in law as well as in equity: Id. Clerical error in description will not vitiate, where intent can be seen from the deed: Mathews v. Eddy, 4 Or. 225. When parol evidence is admissible to aid description: Raymond v. Coffey, 5 Or. 132. Effect should be given to the intelligible portions, and the repugnant rejected: Id.; Board S. L. Com. v. Wiley and Davis, 10 Or. 86. Metes and bounds control quantity, though not correctly stated in the deed: Id. Description not so vague but that a surveyor might find the land with the deed does not render deed void: Willamette C. & L. Co. v. Gordon, 6 Or. 175. Lands omitted by mistake in the description ma}^ be in- serted by court of equity: Ramsey v. Loomis, 6 Or. 367. Parol evidence is admisvsible to locate stake mentioned as starting-point in description otherwise definite: Boch- reinger v. Creighton, 10 Or. 42. Where the deed correctly described the premises, but added the statement that the tract lay in a certain township, whereas it lay partly in the adjoining township also, the latter part of the description may be rejected: Board S. L. Com. v. Wiley and Davis, lO' Or. 86. "Lot 8, section 19, 4 north, 35 east." sufficient description whea-contract is accompanied by possession: Richards V. Snider, 11 Or. 197. Tax deed, though the description of premises is defective, may be given in evidence by a defendant in ejectment to prove color of title in himself: Smith v. Shattuck, 12 Or. 362. "Minter's Donation, township 1 south, range 2 west, 320 acres," is sufiicient description in tax deed, if there is in such township a donation claim answering the de- scription: Minter v. Durham, 13 Or. 470. Lines and corners, mentioned in deeds made subsequent to a city ordinance fixing the lines and corners of 206 Deeds. Deeds (continued). abutting alley, are governed by the ordinance, and are not considered the lines and corners as they formerly existed: Burmeister v. Howard, 1 W. T. 207. 5. Covenants. Where plaintiff was ousted, defendant not having had notice of the action, plaintiff must prove he was ousted by paramount title, when he sues for breach of war- ranty: Stark V. Olney, 3 Or. 88. Damages for breach: Id. One bound by general covenant of warranty cannot set up after-acquired title: Taggart v. Risley, 3 Or. 306; S. C, 4 Or. 235; Dolph v. Barney, 5 Or. 192; Wilson V. McEwan, 7 Or. 87. General covenant of warranty of premises cannot be ex- plained to have been intended to apply to part of premises only: Id. Construction of covenant to party and his heirs, held not to apply to his assigns, or to amount to a covenant for quiet enjoyment: Moflitt v. Coffin, 3 Or. 426. Express covenant cannot be construed so as to extend its obligations by implication: Id.; Failing v. Osborne, 3 Or. 498. So where a covenant was held to amount to general war- ranty, ouster necessary before action for breach: Id. Grantor and his privies are estopped from denying title to which they have given general warranty: Wilson v. McEwan, 7 Or. 87. Covenant for further assurance of title on receiving patent from United States construed: Baker v. Woodward, 12 Or. 3. Covenant in a deed, dividing water and requiring building and repairing of dams, construed: City of Salem Co. v. Salem F. M. Co., 12 Or. 374. Covenant following upon and connected with the haben- dum et tenendum clauses in the words, "and the said B, his heirs and assigns, will warrant and by these pres- ents ever defend," is sufficient to pass after-acquired title: Mann v. Young, 1 W. T. 454. Action for breach of covenant for quiet enjoyment will not lie until there has been some hostile assertion of a better title: Morgan v. Henderson, 2 W. T. 367. Deeds. 207 Deeds (continued), 6. Interpretation and Construction. Deed reciting in the body thereof A as maker, but signed by B, is void: Brauns v. Stearns, 1 Or. 3G7. Parol evidence is not admissible to aid in the interpreta- tion of such deed: Id. Construction of conveyance of water-power, etc., with right • to enjoy flowage unobstructed: Oregon Iron Co. v. Trul- lenger,'2 Or. 311. Same, right to " all the water which naturally flows below said mill ": Oregon Iron Co. v. Trullenger, 3 Or. 1. All parts of deeds should be considered together with surrounding circumstances to ascertain the intention of the parties: Id. Meaning must be given to each term if possible: Chapman V. Wilbur, 3 Or. 326. Construction of deed and confirmatory trust deed to land for the purpose of erecting an academy thereon: Id. Whether the confirmatory deed alters the trust, and how far ratified: Id. A deed must be taken by its "four corners" to interpret it, and the intention when discovered carried out: Bohl- man v. Coffin and Carter, 4 Or. 313. Party of the second part construed to mean party of the first part: Id. Intelligible and consistent portions should be retained, and the repugnant and inconsistent rejected: Raymond v. Coffey, 5 Or. 132; Board School Land Com'rs v. Wiley and Davis, 10 Or. 86. Conveyance of land, except strip reserved for road, held to p^s the fee in the strip, subject to the right of way for road: Abraham v. Abbott, 8 Or. 53. Two conveyances at same time, between the same parties, concerning the same subject-matter, should be construed together: Kruse v. Prindle, 8 Or. 158. Reservation in deed of lot bounded by tide-water, of all privileges around said lot, construed to include wharf- ing rights; Parker v. Rogers, 8 Or. 183. Deed purporting to pass the right, title, and interest of grantor, but with covenants of general warranty of the premises, held to operate as an estoppel as to the whole of the property conveyed: Bay ley v. McCoy, 8 Or. 259. 208 Deeds. Deeds (continued). Grant of a right of way to enter, build, and repair water- ditches, etc., on grantor's land, construed: Spear v. Cook, 8 Or. 380. The word " convey," in a deed, is equivalent to the word "grant": Lambert v. Smith, 9 Or. 185. Words of quitclaim of dower by wife in husband's deed, held not to estop her from claiming an existing or after- acquired fee-simple interest: Burston v. Jackson, 9 Or. 275. Deed of a mill and mill-site, by metes and bounds, with the appurtenances, held to include the easement of the right of overflowing adjoining lands: Jackson v. Trul- linger, 9 Or. 393. Vendor having no legal title, but a mere equitable right to take water off the land of another, his quitclaim deed thereto is an executory contract, and not an executed conveyance: Glasford and Shield v. Baker and Cain, 1 W. T. 224. 7. Recording. Unrecorded deed is good between the parties: Moore v. Thomas, 1 Or. 201; Manaudas v. Mann, 14 Or. 450. In absence of fraud, recorded conveyance has priority over unrecorded deed: Id. Unacknowledged conveyance recorded is no notice to sub- sequent mortgagees: Id. Mechanics who claim liens are estopped to deny notice of mortgage recited in owner's recorded deed: Holmes v. Ferguson, 1 Or. 220. Unrecorded deed carries legal title as against all persons having notice: Musgrove v. Bonser, 5 Or. 313. Recorded deed passes no title when taken with notice of prior unrecorded deed: Id. Deed not entitled to record, recorded may operate as actual notice: Baker v. Woodward, 12 Or. 3. Index is no part of the record; deed recorded and not in- dexed operates as notice: Board of Com. v. Babcock, 5 Or. 472. Wliere title is derived through unrecorded deed not ex- hibited to the purchaser, it is defective, and he need not accept: Collins v. Delashmutt, '^» Or. 51. Deeds and powers of attorney, executed and delivered in Deeds. 209 Deeds (continued). 1845 and 1846, and not acknowledged or proved during the time of the provisional government, may be proved under the general laws to entitle them to record: Wil- son v. McEwan, 7 Or. 87. Attaching creditor stands in all respects as bona fide purchaser, as to notice of unrecorded deed: Boehreinger V. Creighton, 10 Or. 42. Judgment lien, not taken bona fide ^nthout notice, does not prevail over deed unrecorded: Baker v. Woodward, 12 Or. 3. Deed not entitled to record does not take priority over mortgage entitled to record, made and recorded at same time without notice: Fleschner v. Sumpter, 12 Or. 161. Mortgage stands on same footing as deed with respect to recording: Id. Conveyance executed and acknowledged out of the state must be accompanied by certificate that it was executed and acknowledged according to the laws where done, to be recorded: Id. Where neither of two conveyances is recorded within five days from the time of its execution, the first recorded takes precedence: Id. In making proof of an unacknowledged deed for purpose of recording, witness must be sworn, and that fact stated in the affidavit: Mclntyre v. Kamm, 12 Or. 253. Semble, that a deed absolute in form, intended as a mort- gage, could not be recorded as a mortgage; if re- corded as a deed it operates as notice of grantee's claim: Haseltine v. Espey, 13 Or. 301. One holdmg unrecorded deed is not bound by decree quieting title in a suit subsequently brought against his grantor, where the adverse party had full notice, and the deed was recorded during the pendency of the suit: Walker v. Goldsmith, 14 Or. 125. Unacknowledged deed, though not entitled to record, passes title, and is a good conveyance except as against bona fide purchaser for value: Manaudas v. Mann, 14 Or. 450. Record of a deed showing it to bear a certain date must yield to the original deed showing a diflerent date: Skellinger v. Smith, 1 W. T. 369, Ob. Dig.— U 210 Deeds. Deeds (continued). Best evidence of a deed and its contents before and after the registration laws is the deed itself, the execution and delivery having been first duly proved: Id. 8. Validity and Effect. Deed unacknowledged and unrecorded good between the parties: Moore v. Thomas, 1 Or. 201; Manaudas v. Mann, 14 Or. 450. Parties are bound by recitals contained in a deed: Holmes V. Ferguson, 1 Or. 220; Graham v. Meek, 1 Or. 325. Deed of release, without covenants, made by a mere occupant, does not bind grantor's after-acquired title: Lownsdale v. Portland, 1 Or. 397. Quitclaim deed conveys the interest of grantor only, not the land: Farnum v. Loomis, 2 Or. 29; Baker v. Wood- ward, 12 Or. 3. Such deed does not estop grantee from showing that his grantor had no estate to which dower could attach: Id. The making or agreeing to make a quitclaim deed of all interest the grantor acquires from a certain source does not prevent him from buying from another source, and holding same land: Shively v. Welch, 2 Or. 288. Purchaser of part of an estate takes subject to servitudes visibly attached: Oregon Iron Co. v. Trullenger, 3 Or. 1. Grantor seeking to show his deed voidable has no stand- ing in equity while retaining purchase-money: Kelly v. People's Transportation Co., 3 Or. 189. After-acquired legal title in grantor inures to grantee when the deed clearly shows that it was meant to pass an absolute estate, although it contains no warranty: Taggart v. Risley, 4 Or. 235. Deed in consideration of marriage not presumed fraudu- lent, but may be set aside for fraud, where both parties concurred in the fraud: Bonser v. Miller, 5 Or. 110. Quitclaim deed passes all the estate that can be conveyed by bargain and sale, in Oregon: Dolph v. Barney, 5 Or. 192. Deed containing covenant of warranty operates to trans- mit any after-acquired estate of grantor: Id. Sheriff's deed is evidence of title, and recitals are prima facie evidence: Id., Deeds. 211 Deeds (continued). School superintendent's deed, if regular on its face, is prima facie evidence of his power to convey: Id. Deed of school land commissioners conclusive on the state; but a party may have it set aside for fraud and false testimony on the part of the grantee in obtaining it: Ilurst v. Ilawn, 5 Or. 275. Fraudulent deed by husband before divorce, and after cause of suit accrued against him, may be set aside at the suit of the wife, after decree of divorce is granted to her: Barrett v. Barrett, 5 Or. 411. Deed made by judicial sale in county court, regular on its face, based upon a judgment apparently valid, gives color of title: Hatcher v. Briggs, 6 Or. 43. Deed of insane person is void, and may be impeached when offered in evidence in ejectment: Farley v. Par- ker, 6 Or. 105. Deed void as a conveyance may be admitted in evidence to identify land described: Willamette Co. v. Gordon, 6 Or. 175. Imperfect deed of party in possession may be construed as a contract to convey, and specific performance be granted: Hill v. Cooper, 6 Or. 181. Parol evidence is admissible to show a deed absolute on its face to be a mortgage: Hurford v. Harned, 6 Or. 362; Stephens v. Allen, 11 Or. 188; Albany and San- tiam W. D. Co. v. Crawford, 11 Or. 243; Wilhelm v. Woodcock, 11 Or. 518; Miller v. Ansenig, 2 W. T. 22. Deed which is defective in the description of the premises may be used as evidence to prove unequivocal declara- tions^ontained therein, in a suit to reform the deed: Hamscy v. Loomis, 6 Or. 367. Deed of corporation sealed with its seal, and signed by the president and secretary, declaring it is executed by them for the corporation, will convey title: Moore v. Willamette T. & L. Co., 7 Or. 359. Assignment for benefit of creditors, providing for sale of property, and payment of proceeds to unsecured cred- itors, prima /aric valid; fraud is not presumed: Kruse v. Prindle, 8 Or. 158. Grant of a right of way for a mill-race is an easement, and the right to use water of streams crossing is re- 212 Deeds. Deeds (continued). served in the grantor without express words: Miller v. Vaughn, 8 Or. 333. Deed, void as a bargain and sale for want of considera- tion expressed, may operate as a grant if it contain other apt words of conveyance: Lambert v. Smith, 9 Or. 185. Effect of deed must be determined by the court, and not left to the jury: Johnson v. Shively, 9 Or. 333. That plaintiff is not a bona fide purchaser because he claims under a quitclaim deed is a defense in equity, not at law: Hass v. Sedlak, 9 Or. 462. Fee-tail is abolished in Oregon; estates of inheritance are subject to general power of alienation by deed: Rowland v. Warren, 10 Or. 129. Deed of assignee in bankruptcy to property sold on fore- closure of prior mortgage conveys no title: De Lash- mutt V. Sellwood, 10 Or. 319. Principles and evidence upon which a deed absolute on its face will be held a mortgage: Stephens v. Allen, 11 Or. 188; Albany and Santiam W. D. Co. v. Crawford, 11 Or. 243; Wilhelm v. Woodcock, 11 Or. 518. Purchaser under a quitclaim deed is not a bona fide pur- chaser without notice: Richards v. Snyder and Crews, 11 Or. 501; Baker v. Woodward, 12 Or. 3. Deed by one claiming under Donation Law, before receiv- ing patent, with covenant of further assurance, operates to convey equitable title: Bohlman v. CoiSin and Carter, 4 Or. 313; Baker v. Woodward, 12 Or. 3. Quitclaim deed conveys only the right of the grantor, and grantee having notice of equitable title in another takes subject thereto: Baker v. Woodward, 12 Or. 3. Unrecorded deed prevails over subsequent judgment lien not acquired in good faith without notice: Id. Quitclaim deed in chain of title is notice sufficient to put purchaser on inquiry: Id. Quitclaim deed or other instrument purporting to convey title is sufficient to constitute color of title as founda- tion for adverse possession: Swift v. Mulkey, 14 Or. 59. Quitclaim deed, by vendor having no legal title but mere equitable right to take water from the land of another, conveys no title, but is a mere executory contract, Depositions. 213 Deeds (continued). under which vendee gains no right but the right to demand possession and legal conveyance of the water right: Glasford and Shield v. Baker and Cain, 1 W. T. 224. Alteration of a deed before delivering, but after same has passed out of maker's hands, avoids the deed: Walla Walla Co. V. Ping, 1 W. T. 339. Privy to a deed is bound by the notice it imparts, whether he had actual notice or not: Skellinger v. Smith, 1 W. T. 369. Statute of 1867, curing defective deeds, is constitutional, and applicable to the case of married woman's deed: Id. Deed acknowledged before county auditor before 1867, whether valid or not, was cured by the statute of that year: Kenyon v. Knipe, 2 W. T. 422, Defamation. See Slander and Libel. Default. See Appeal and Error; Constitutional Law; Judg- ments and Decrees. Defenses. See Answers and Defenses; Criminal Law; Pleading. Delivery. See Deeds. Demand. See Assumpsit; Bills and Notes; Contracts; Con- version; Counties; Municipal Corporations; Replevin. Demnrrer. See Equity; Pleading. Denials. See Answers and Defenses. Dependent Covenants. See Contracts; Deeds. Depositions. See Reference. Proceeding to take testimony de bene esse; notice to the adverse party required under the peculiar circum- stance of the case: In the Matter of T. J. Carter, 3 Or. 293. The proceeding should not be resorted to merely to ascer- tain what an adverse witness will testify: Id. Deposition taken in different proceeding between other parties, to prove a marriage not admissible under sec- tion 819 of the Code (sec. 829, Hill's A. L.): Murray V. Murray, 6 Or. 26. Certificate of commissioner to deposition taken out of the state need not conform to the code requirements of cer- tificate to deposition taken in the state: Heirs of Clark V. EUis, 9 Or. 128. 214 Depositions. Depositions (continued). Effect of amendment of 1885 (sec. 397, Hill's A. L.), in equity practice, is to repeal sections of the Code allowing parties, after issue is joined, to take depositions: Marks & Co. v. Crow, 14 Or. 382. And it seems under the statute as amended, depositions de bene esse can no longer be taken, except in case where reference has been had: Id. Deposition to be used in an admiralty case may properly be taken befoi'e a notary public: Phelps v. Steamship City of Panama, 1 W. T. 615. Notice of ten days for taking such deposition held a reasonable notice in this case: Id. Statute of United States providing for taking depositions is to be strictly construed; the certificate of the notary does not show that the witness was duly cautioned as by the statute required: Id. Opening of deposition by the clerk of court, and placing same on file without an order of the court, precludes its being received in evidence: Id. Deputies. County clerk cannot appoint deputy with powers to act for him, unless authorized by statute: State v. Smith, 1 Or. 250. Must transact business in the name of the principal: Dennison v. Story, 1 Or. 272. Deputy county clerk was an independent officer under territorial act of 1856: Willamette Co. v. Gordon, 6 Or. 175. His official signature was " deputy clerk," and his duties and office were distinct from the clerk: Id. Constable may appoint deputy for particular service, but not to act for him generally: Prickett v. Cleek, 13 Or. 415. Service of summons by " deputy constable," the record showing appointment of no such deputy to perform the service, is void: Id. Descent. See Administration; Heirs; Public Lands; Wilis. Devise. See Administration; Legacies; Wills. Diligence. See Notes and Bills; Laches; Negligence. Directors. See Corporations; Schools. Disbursements. See Costs and Disbursements. Ditches. 215 Discretion. See Appeal and Error; Costs and Disburse- ments; Jury and Jury Trial; New Trials; Pleading; Practice. Dissolution. See Corporations; Partnership. District Attorney. May sue in his own name as plaintiff in ci\41 action on bail bond: Hannah v. Wells, 4 Or. 249. It is his duty to prosecute suits for foreclosure of mortgages brought by school land commissioners, and he is entitled to the statutory fee therefor: Claim of Ison, 6 Or. 465. The board of commissioners has authority to employ coun- sel to assist the district attorney in such cases: Id. Actions brought on official undertakings are not for the recovery of fines and forfeitures, for which he is allowed ten per centum as fees by statute: Claim of Ison, 6 Or. 4G9. Has no right to appear or claim fees in suits by board of commissioners for the sale of school land, in reference to school lands or funds, where the state is not a party: Hazard's Appeal, 9 Or. 36G. Improper remarks of, to jury, how exceptions must be taken: State v. Lee Ping Bow, 10 Or. 27; State v. Ander- son, 10 Or. 448; State v. Abraras, 11 Or. 169. Cannot intervene in a suit and claim forfeiture of a debt for usury, for the benefit of common school fund: Sujette V. Wilson, 13 Or. 514. District Courts. See Constitutional Law; Courts; Judges; Judgments and Decrees; Jurisdiction. Although under United States statute, the territorial dis- trict court is to be held at one place in each district, the legislature may provide for holding additional sittings in each county, if without expense to the United States: Gird V. State, 1 Or. 308. Judicial district of King County having been abolished by orderof the judges in 1856, the court thereof was merged into the court for the second district: Boycr v. Fowler 1 W. T. 101. Ditches. Powers and jurisdiction of county commissioners under act of 1868 (c. 39, tit. 1, Hill's A. L.): Seely v. Sebas- tian, 4 Or. 25. Compensation and damages: Id;, 216 Ditches. Ditches (continued). Said act of 1868 is not unconstitutional as taking property for uses not public: Id. Railroad, turning watercourse into a ditch, is bound to keep the ditch at all times in a condition to carry the water without overflowing adjoining lands: Davidson v. 0. & C. R. R. Co., 11 Or. 136. This duty is not aflFected by lapse of time, or by the fact that other persons turn water into the ditch: Id. Divorce. 1. Jurisdiction. 2. Causes. 3. Alimony and Pkoperty Rights. 4.- Custody of Children. 5. Practice and Evidence. 1. Jurisdiction. Stipulation that party was divorced in a certain suit is an admission of the jurisdiction of the court to grant the divorce: Groslouis v. Northcut, 3 Or. 394. When the right of suit accrues by virtue of residence in the state for a year, under section 494 of the Code (sec. 498, Hill's A. L.), the plaintiff has a year thereafter in whicli to sue for causes therein referred to: Jacobsen v. Jacobsen, 11 Or. 454. Supreme Court has no jurisdiction to review decree of di- vorce, but may review other proceedings in the suit: Madison v. Madison, 1 W. T. 60; contra, Tierney v. Tier- ney, 1 W. T. 568. Divorce act forbidding Supreme Court to review final order of District Court is contrary to provisions of Organic Act, and to such extent void: Tierney v. Tierney, 1 W. T. 568. Legislature of Oregon Territory had plenary power to grant divorce by special act, and the courts have no authority to review its action: Maynard v. Valentine, 2 W. T. 3; Maynard v. Hill, 2 W. T. 321. To grant divorce does not impair the obligation of con- tracts: Id. Nor does such action violate provisions of the ordinance of 1787, respecting contract rights and forbidding legis- lative interference with the primary disposal of the soil: Id. Divorce. 217 Divorce (continued). 2. Causes. Concealment by woman from her intended husband of the fact that she had been the mother of an illegitimate child, not such fraud as will annul marriage: Smith v. Smith, 8 Or. 100. False accusation of unchastity is sufficient ground for divorce: Id.; McMahan v. McMahan, 9 Or. 525. The fact that such accusations were made after parties separated is immaterial: Id. Acts of cruelty, though presumed condoned by cohabita- tion after, are revived by repetition: Atterberry v. At- terberry, 8 Or. 224. After reconciliation, any acts of cruelty creating reason- able fear of personal violence will revive condoned cru- elty: Id. Where adultery with a near relative is alleged as ground, it should be clearly proved: Rickard v. Rickard, 9 Or. 1G8. Keeping a woman in the house with whom husband was groundlessly suspected and charged by the wife with adultery, held not cruelty to wife: Id. Keeping persons in the house, against protest of wife, who habitually mistreat her and render her life burdensome, is cruelty of the husband, and ground for divorce: Hall V. Hall, 9 Or. 452. Charge of unchastity, whereby wife acquired venereal disease and communicated same to husband, if false, is ground for divorce: McMahan v. McMahan, 9 Or. 525. Actual violence or reasonable apprehension of bodily in- jury is necessary as cause for divorce on the ground of cruelfy : Cline v. Cline, 10 Or. 474. What is a personal indignity depends to some extent on the character and circumstances of the parties: Id.; Adams v. Adams, 12 Or. 17G. Cruelty must be unmerited and unprovoked, or out of pro- portion to the provocation: Taylor v. Taylor, 11 Or. 303. The policy of the law is to sustain the marriage relation, and a cause for divorce must be clearly shown: Id. Imprudent, unreasonable, or jealous conduct is not alone sufficient, necessarily; defendant must have evinced a malignant desire to annoy or harass: Boon v. Boon, 12 Or. 437. 218 Divorce. Divorce (continued). 3. Alimony and Property Rights. Plaintiff (husband) ordered to pay over $250 for expenses of defendant in defending, and to pay her traveling ex- penses from distant state: Smith v. Smith, 3 Or. 363. Whether under act of 1854 court had power to transfer lands of party to children: Groslouis v. Northcut, 3 Or. 394; Doscher v. Blackiston, 7 Or. 403. Where pleadings make no reference to property, court can- not transfer a particular tract: Id. Disposition of real estate is incidental to divorce, but com- plaint must state the facts: Id. Where pleadings and decree are silent as to real property, plaintiff acquires no right therein by the divorce: Bam- ford V. Bamford, 4 Or. 30; Hall v. Hall, 9 Or. 452. A general decree for one third of the property of the de- fendant cannot be entered in granting the divorce, where the pleadings are silent as to such property: Id.; Hall V. Hall, 9 Or. 452. Judgment roll must contain a description of the property adjudicated upon: Id. Though divorce be granted, court may afterward decree division of j)roperty, if done in the same suit: Id. That defendant had fraudulently conveyed away his prop- erty before suit for divorce was begun is not sufficient ground for opening decree of divorce, unless the fact was not known: Id. After suit is ended and wife granted divorce, she may at- tack fraudulent conveyance, made by husband any time after cause of suit arose: Barrett v. Barrett, 5 Or. 411; Weiss v. Bethel, 8 Or. 522. It is the peremptory duty of the court to decree one-third part of all real estate owned by the losing party to the other, if the prayer for the divorce is granted : Wetmore V. Wetmore, 5 Or. 469. Third party to whom husband fraudulently conveys legal title may be made party defendant in suit by wife for divorce: Id. Court cannot award more than one third of the losing party's property to the other: Rees v. Rees, 7 Or. 47, Under act of 1854, court could direct husband to pay a Bum of money in lieu of the wife's equitable interest Divorce. 219 Divorce (continued). in land, standing in his name, in granting her a divorce, and acceptance estops her: Brooks v. Ankeny, 7 Or. 4G1. Woman is entitled to hold property earned by her after marriage, and to control the same herself: Atterberry V. Atterberry, 8 Or. 224. Decree of divorce being silent as to property, the right to property fraudulently concealed at that time may be afterward enforced in an original suit in equity: Weiss V. Bethel, 8 Or. 522. The plaintiff in such suit may make persons in possession, claiming adversely to her, parties defendant: Id. Delay of over thirteen years, with sufficient knowledge to be put on inquiry, is laches: Id. Mistake in deed between parties to a divorce suit made in consideration of not defending, will not be corrected by a court of equity: Phillips v. Thorp, 10 Or. 494. Where the plaintiff's principal object is to secure certain property rights, a divorce will be refused: Adams v. Adams, 12 Or. 176. Where plaintiff' neglected to pay into court money for de- fense by wife within the time ordered by the court, but subsequentl}'- paid, and made showing by affidavit in ex- cuse, it was error to dismiss the suit for his default: Newhouse v. Newhouse, 14 Or. 290. The showing of inability to pay constitutes sufficient ex- cuse to purge the contempt, and the neglect was not contumacious or fraudulent: Id. Decree regarding realty, contrary to the allegations and proofs, must be reversed: Bender v. Bender, 14 Or. 353. Order requiring husband to pay wife's counsel fees, and a certain sum to trustees for her use during life, is sanc- tioned by the divorce act: Madison v. Madison, 1 W. T. 60. Husband having begun suit for divorce was ordered to pay into court certain sums for wife for expenses of her defense, and subsequently he dismissed the suit; the court properly entered judgment against him for reason- able expenses of wife, including counsel fees: Thorndike v. Thorndike, 1 W. T. 175. The amount of alimony is to be regulated by the facts as disclosed: Tierney v. Tierney, 1 W. T. 668. 220 Divorce. Divorce (continued). 4. Custody of Children. Decree assigning children to custody of one of the parties is appealable: Pittman v. Pittman, 3 Or. 472. Court has full power; and mere fact of awarding children to party in fault raises no presumption of error: Pitt- man V. Pittman, 3 Or. 553. Father is entitled to custody of minor child rather than maternal grandfather, wife being in fault: Jackson v. Jackson, 8 Or. 402. Decree failing to provide for the care and custody of the minor children of the marriage is defective: Boon v. Boon, 12 Or. 437. Order of District Court awarding custody and fixing al- lowance for support of child is interlocutory, and not subject to review; the child is the ward of the court: Tierney v. Tierney, 1 W. T. 568. 5. Practice and Evidence. Ten days' service in suit within the state is sufficient un- der the statute: Rochester v. Rochester, 1 Or. 307. Property rights may be adjusted after divorce granted, but must be done in same suit: Bamford v. Bamford, 4 Or. 30. No decree concerning the property can be entered where the pleadings are silent as to the existence of property: Id.; Hallv. Hall, 9 Or. 452. Though the suit is based upon allegations which, if true, decide the defendant guilty of a crime, the charge is sufficiently proved by a preponderance of evidence: Smith V. Smith, 5 Or. 186. Stipulation for divorce and custody of children is void: Savage v. Savage, 10 Or. 331. Person, through her own default and negligence allowing statutory time for taking testimony to expire, cannot claim as a matter of right that the suit siiall be con- tinued, and the time extended for taking such evidence: Id. Agreement not to defend is void as against public policy: Phillips V. Thorp, 10 Or. 494. Demurrer to complaint is not such an admission of the charge as is meant in section 494 of the Code (sec. 498, Hill's A. L.), which provides that in certain cases the Dower. 221 Divorce (continued). charge may be admitted by the defendant, and he may show in bar that it did not occur within a period fixed by the statute: Rice v. Rice, 13 Or. 337. To avail himself of that provision, defendant must admit the charge, not merely to test its legal sufficiency, but as an actual fact: Id. Defendant may file cross-bill and counterclaim, and de- mand and receive aflirmative relief: Dodd v Dodd 14 Or. 338. Plaintiff failing to establish her case was nevertheless awarded costs, it appearing that defendant was not without fault, and had property partly earned by plain- tiff: Bender v. Bender, 14 Or. 353. A decree of divorce is not subject to review on error, but there may be other questions involved which arc re- viewable: Madison v. Madison, 1 W. T. 60. But the statute forbidding review of such decree is void, and error lies: Tierney v. Tierney, 1 W. T. 568. The provisions of the Practice Act regarding waiver of jury trial, and requiring judge to state in writing conclusions of fact and law separately, does not apply to divorce cases: Madison v. Madison, 1 W. T. 60. Former alleged marriage held not to be before the Su- preme Court upon the record: Tierney v Tiernev 1 W. T. 568. Actions for divorce are proceedings at law, and the find- ings of the lower court stand as the verdict of a jury, not to be set aside unless manifestly contrary to the evidence: Id. Docket. See^Judgments and Decrees; Justice of the Peace. Documentary Evidence. See Evidence. Dogs. Sec Common Carriers. Domestic Animals. See Animals. Domestic Relations. See Divorce; Guardian and Ward; Husband and Wife; Infancy; Master and Servant,' Parent and Child. Domicile'. See Elections; Public Lands. Donation Act. See Public Lands. Dower. Woman docs not relinquish her dower by signing and scaling, but not acknowledging, her husband's deed: Moore v. Thomas, 1 Or. 201. 222 Dower. Dower .( continued ) . Grantee under quitclaim deed may show his grantor had no estate to which dower could attach: Farnum v. Loomis, 2 Or. 29. Cannot attach to an equity, in Oregon: Id.; Whiteaker V. Vanschoiack, 5 Or. 113. Assignment of, not necessary to right of action for, against grantee of husband denying the right to dower: McKay V. Freeman, 6 Or. 449. The complaint need not, in addition to allegation that defendant wrongfully withholds possession, allege that he denies plaintiff's right: Id. Widow is entitled to dower in donation claim, deeded away by husband alone after they had complied with the conditions of the Donation Act, but before he has obtained patent: Id. Widow is entitled to dower in husband's half of donation claim, under section 4 of the act, where the husband dies before patent issues: Love v. Love, 8 Or. 23. Before dower is assigned, widow has no estate in deceased husband's lands, and no right to rents; administrator is entitled to all the rents to pay debts: Leonard v. Grant, 8 Or. 276. Dower of the common law is recognized by the. laws of Washington Territory, and is to be assigned by the rules of the common law: Ebey v. Ebey and Beam, 1 W. T. 185. Dower extends to donation claims, and the reserved right of eminent domain in the United States does not defeat the right of dower therein: Id. Withholding dower entitles the claimant to damages: Id. No statutory method of admeasuring such damages being prescribed, that adopted by the lower court approved: Id. The act of November 9, 1871, abolished dower in Wash- ington Territory, by declaring that " neither dOwer or curtesy shall hereafter accrue": Hamilton v. Ilirsch, 2 W. T. 223. Such legislation is taking away an expectancy, not a vested right: Id. Drafts. See Bills and Notes. Drunkenness. See Neghgene'e. Easements. 223 Duress. See Fraud and Deceit. * By threats, need not be by such threats as would operate on a person of ordinary firmness, but it is duress if they do in fact compel the threatened person: Parmen- tier V. Pater, 13 Or. 121. Debtor by threats and menaces obtaining relinquishment of debt from creditor of weak mind ; the release is in- valid though the creditor was not insane: Id. Dying Declarations. See Evidence. Easements. See Eminent Domain; Water and Water- courses. One who has an easement has the right to enter the ser- vient estate when necessary to repair: Thompson v. Uglow, 4 Or. 369. Owner of mill-race and right of way may enter and dig up and use adjacent soil when necessary: Id. Cannot dig or use such soil when there is any other mode of repairing: Id. Grant of a right of way for a mill-race is a mere easement, and docs not include a right to appropriate water flow- ing on grantor's land: Miller v. Vaughn, 8 Or. 333. Express reservation of such water is not necessary in the grant: Id. Grant of right of way, with right to enter, etc., for water ditches, construed: Spear v. Cook, 8 Or. 380. Right to overflow adjoining lands is an easement, and will pass as an appurtenant by grant of a mill with the appurtenances: Jackson v. Trullinger, 9 Or. 393. Such right of overflow, and the dam and rights of flowage, are incident to the enjoyment of a mill granted, and pass without the word '• appurtenances " : Id. Irr^ction to condemn land for railway, an easement of right of way, and not the land itself, is acquired : 0. R. & N. Co. V. Oregon Real Estate Co., 10 Or. 444. One claiming a right to overflow lands by erecting a dam must show his right by grant, prescription, or license: Wattier v. Miller, 11 Or. 329. Title of occupant of servient estate cannot be attacked by one showing no right to the easement: Id. Such claimant cannot enjoin drainage by one having pos- session of the overflowed land: Id. Grant of easement is presumed from an adverse enjoy- 224 Easements. Easements (continued). ment for the statutory period: Johnson v. Knott, 13 Or. 308. Payment of taxes by the owner of the soil is not incon- sistent with the acquisition of such right: Id. lyectment. Donee under Donation Act may maintain, against one who shows no title but possession: Keith v. Cheeny, 1 Or. 285. Possession of defendant is presumed lawful, and plaintiff must recover on strength of his own title: McEwan v. Portland, 1 Or. 300. City of Portland may maintain action to recover public square dedicated: Leland v. Portland, 2 Or. 46. Plaintiff need not set out his muniments of title: Pease V. Hannah, 3 Or. 301. Where defendant set up title to undivided interest, re- quired to show what interest: Id. Defendant claiming to own undivided one fifth must set out names of his co-tenants: McCown v. Hannah, 3 Or. 302. Where plaintiff's title is denied, burden is on him to show title in himself: Farley v. Parker and Sutherland, 4 Or. 269. Where both parties derive title from the same person, neither can deny the title in such person: Dolph v. Barney, 5 Or. 192. Decree which operates as a deed, admissible in evidence to prove title: Id. Tenant in common may recover the whole in action against a stranger: Id. Proper remedy to recover for use and occupation, unless relation of landlord and tenant, express or implied, ex- ' ists: Espy v. Fenton, 5 Or. 423. Deed of insane person is void, and when offered to prove title in ejectment may be impeached: Farley v. Parker, 6 Or. 105. Plaintiff must set forth in his complaint the nature of his CBtatc, or his action will be regarded as forcible entry and detainer: Thompson v. Wolf, 6 Or. 308. Person ejected cannot, having entered the land with the intention of holding adversely, on his being ousted, re- Ejectment. 225 Ejectment (continued). move a building erected by hira, though of wood on posts or blocks: Doscher v. Blackiston, 7 Or. 143. Defendant may plead inconsistent defenses in real actions: Moore v. Willamette T. & L. Co., 7 Or. 355. May plead ownership in himself and in another, and proof of either will defeat the action: Id. Judgment in favor of defendant is conclusive as to the lawfulness of his title and entry when brought in ques- tion collaterally: Hill v. Cooper, 8 Or. 254. Defendant is not allowed to give in evidence facts show- ing his own title under mere denial of plaintiff's title, and is confined to proof of the weakness of the latter: Phillippi v. Thompson, 8 Or. 429. Defendant may introduce deeds recited in a confirmatory deed relied on by plaintifi", for the purpose of showing the true boundaries of the land claimed by the plain- tifi": Id. Under section 316, Civil Code (sec. 319, Hill's A. L.), no- mere equitable right or equitable estoppel can be pleaded as a defense: Newby v. Rowland, 11 Or. 133. Ejectment is not the remedy by which a widow can get possession of dwelling-house for her quarantine: Aiken V. Aiken, 12 Or. 203. In contest between legal titles, defendant may assail plaintiff^'s title, and assume the burden of proving notice and want of consideration: Mclntyre v. Kamm, 12 Or, 253. • Defendant claiming under statute of limitations may giver in evidence a tax deed to show color of title accom- panied by possession, though the description i§ imper- fect: Smith V. Shattuck, 12 Or. 362. Co-tenants cannot join as plaintifi's in ejectment, but the defect is waived by answering over: Mintcr v. Durham, 13 Or. 470. Defendant cannot show mistake in the description in hi» deed, or vary its terms by parol proof contradicting it, •the deed not having a latent ambiguity: Holcomb v. Mooney, 13 Or. 503. It is not error to permit an amendment on the trial by striking out an allegation and denial of defendant's pos- session in the complaint and the reply, where there is Ob. Dig.— 15 226 Ejectment iyectment (continued). no prejudice to substantial riglits: Swift v. Mulkey, 14 Or. 59. Where plaintiff proves title, he is entitled to possession, unless defendants show a better title or adverse posses- sion for ten years: Id. Adverse possession for the statutory period confers title sufficient to maintain ejectment: Joy v. Stump, 14 Or. 361. An unacknowledged deed, to be followed by proof of notice thereof, is admissible as proof of title as against one holding a subsequent recorded deed: Manaudas v Mann, 14 Or. 450. Action, under the statute, is not an action to try merely the abstract legal title to the soil, but to determine who is entitled to the possession: Burmeister v. Howard, 1 W. T. 207. Holder of legal title may not recover, if by his acts the equitable title be in the adverse party: Id. Where plaintiff claims under certificate of purchase of public lands, defendant may plead, by way of induce- ment, a state of facts upon which the commissioner of the general land-oflice caused such certificate to be can- celed: Hays v. Parker, 2 W. T. 198. In such action, when it appears that the subject-matter thereof is pending before the interior department of the the United States, and not fully determined, the court should dismiss the action at plaintiff's cost: Id. Elections. See Mandamus; Quo Warranto; Practice. Votes of precinct cannot be rejected because no poll-book was sent to county clerk: Day v. Kent, 1 Or. 123; Cresap v. Gray, 10 Or. 345. If it can be ascertained who has majority, irregularities in the returns will not defeat: Darragh v. Bird, 3 Or. 229; Cresap v. Gray, 10 Or. 345. On contest, the office will be given to him who has the right by the votes: Territory v. Pyle, 1 Or. 149; Dar- ragh v.Bird, 3 Or. 229. On contest, the notice is the commencement, and court has no jurisdiction to hear any motion in the case until its service and return: Mvers v. Warner, 3 Or. 212. Elections. 227 Elections (continued). Notice must state definite time for hearing; additional indefinite words surplusage: Id. So when the time stated is *' at the next term of the Circuit Court of said county, or as soon as said judge will hear the same," the indefinite words may be rejected: Id. Judge at chambere may do whatever court might do in term time in contest cases: Id. Plaintiff having named a day for hearing, his motion for earlier day denied: Id. Mandamus not proper remedy to try ultimate right to office: Warner v. Myers, 3 Or. 218; S. C, 4 Or. 72. An answer denying the legality of the election of the peti- tioner will not abate the writ of mandamus: Id. Certificate of canvassers is evidence of what was decided by them: Id. Powers of sheriff in office cease when served with certifi- cate of the election of successor: Id. Contest pending does not stay the eflfect of such certifi- cate: Id. Elector should vote for county officers only in precinct where he resides: Darragh v. Bird, 3 Or. 229. Pardon does not restore person convicted of felony to rights of elector: Id.; contra, Wood v. Fitzgerald, 3 Or. 568. What constitutes a residence: Darragh v. Bird, 3 Or. 229; Wood V. Fitzgerald, 3 Or. 568. - Person duly challenged may not vote until sworn: Dar- ragh V. Bird, 3 Or. 229. After the hour for closing polls, they cannot be opened again: Id. Party attacking a voter who has voted must show he is disqualified: Id. Residence of person in employ of United States: Id. Rejected votes should appear on poll-book: Id. Naturalized person, a voter on receiving final papers: Id.; Wood V. Fitzgerald, 3 Or. 568. Right of judges to reject votes: Id. On contest, will of majority as expressed by their votes will be given effect: Id. Inquiry on contest, limited to the votes returned on poll- book: Id. 228 Elections. Elections (continued). Limitations of suffrage to white persons by state constitu- tion is abrogated by the fifteenth amendment of the United States constitution: Id. Costs cannot be allowed either party in contested election case: Id. Municipality has no power to try contest of city election, unless expressly authorized: Robertson v. Groves and Corvallis, 4 Or. 210. The right is not implied from its right to provide for elec- tion of city officers, nor from its general authority to pass by-laws and ordinances: Id. Indictment for illegal voting under section G30 of the Criminal Code (sec. 1846, Hill's A. L.): State v. Bruce, 5 Or. 68. Mandamus, not injunction, proper remedy to contest elec- tion selecting county seat: McWhirter v. Brainard, 5 Or. 426. Jurisdiction of municipal body, having power to judge of the qualifications and election of its members, is not ex- clusive; Circuit Court has power to inquire into the right to office under section 354 of the Code (sec. 357, Hill's A. L.): State v. McKinnon, 8 Or. 493. Ballot on colored paper is illegal at any election under the general laws: Id. In case of a tie, neither candidate is elected, and neither can exercise the duties of office until the right is deter- mined by lot, and the person declared duly elected: Id. On review, alleged error of law in counting votes by com- mon council of Portland cannot be retried, the city charter making the council the final judge: Simon v. Portland Com. Council, 9 Or. 437. Loose tally-sheets returned in the poll-books cannot be considered by canvassers as part of the returns: Simon V. Durham, 10 Or. 52. Precinct omitted by canvassers as not returned wlien they canvassed may be counted by the court on contest, hav- ing in the mean time been duly returned: Cresap v. Gray, 10 Or. 345. Vote of a precinct should be counted, though returned more than ten days after the election, if regular and the vote in that precinct was regularly cast: Id. Eminent Domain. 229 Elections (continued). Act giving judge power to hear contest in vacation is not unconstitutional: Id. Act requiring registry by voters as a prerequisite to vot- ing is void: White v. Commissioners, 13 Or. 317. Requirement to register on a previous day adds an illegal condition to the qualifications prescribed by the con- stitution: Id. Duty of county clerk to make out notices of election may be enforced by mandamus: State v. Ware, 13 Or. 380. Circumstance of a person voting at a presidential election in another state would not establish his residence out of the territory against his sworn statements of resi- dence and unchanged intention of returning: Clarke v. Territory, 1 W. T. 68. Act of Congress, 1869, regulating elections in Washington Territory, had the effect of changing the time for elec- tions of county and other officers: Davidson v. Carson, 1 W. T. 307. Embezzlement. Embezzlement is proper term to describe the offense when an agent fraudulently converts the money of his em- ployer: State V. Sweet, 2 Or. 127. Eminent Domain. See Constitutional Law; Municipal Corporations; Public Lands; Railroads. 1. The Power and its Nature. 2. Proceedings and Practice. . 3. Compensation and Damages. 1. The Power and its Nature. In action to condemn, plaintiff cannot disparage defend- ant's title: Willamette Falls C. & L. Co. v. Kelly, 3 Or. 99. Plaintiff must make all owners parties, and cannot take advantage by his neglect: Id. Condemnation must be for public use; void if for private use: Oregon Cascade R. R. Co. v. Baily, 3 Or. 164. Corporation has no greater right in property condemned than in property purchased: Id. Property held by one (corporation for public use, not gen- erally liable to condemnation: Id. Corporation authorized as carrier, not necessarily limited to one side of river at portage: Id. Eminent Domain. Eminent Domain (continued). Has no exclusive right to use of right of way not neces- sary to its business: Id. Land voluntarily abandoned by corporation is liable to condemnation by another: Id. Judicial condemnation, not exercised when agreement as to purchase can be had: Oregon Cascade R. R. Co. v. Baily, 3 Or. 178. Mines of precious metals belong to the eminent domain of the sovereignty: Gold Hill I. M. Co. v. Ish, 5 Or. 104. Statute authorizing establishing of private road over land of another without consent is void: Douglas Co. Road Co. V. Abraham, 4 Or. 318. County Court has no jurisdiction to try questions of emi- nent domain: C. & G. Road Co. v. Douglas Co., 5 Or. 280. Power of County Court to lay out road over road owned by private company: Id. Corporation cannot appropriate highway established by dedication without applying to the County Court: Douglas Co. Road Co. v. Abraham, 5 Or. 318. The paramount control of streets in a city and roads in the country is in the legislature: East Portland v. Multnomah County, G Or. G2. The legislature may transfer its control of city streets to the municipality: Id. Taking property for roade without awarding damages before deducting benefits is constitutional: Putnam v. Douglas County, 6 Or. 328. Private corporation, by agreement with County Court under the statute, may locate its road part of the way over a public highway, acquiring thereby a common right of user: D. C. R. Co. v. C. & G. R. Co., 8 Or. 102. This, though another company, without the agreement, has already located thereon: Id. Witliout agreement with the authorities, company cannot appropriate to its exclusive use public grounds duly dedicated: Oregon R'y Co. v. Portland, 9 Or. 231. The statute does not contemplate a taking of such public property when consent cannot be obtained, and using the same to the subversion of such public use: Id. Appropriation of public Jevec for depots, etc., without Eminent Domain. 231 Eminent Domain (continued). agreement, is an obstruction of the public rights not permitted by the statute: Id. Legislature cannot authorize aj^propriation without com- pensation first assessed and tendered: Oregonian R'y Co. V. Hill, 9 Or. 377. Strict compliance with the statute is necessary: Id. Evidence of an attempt to agree upon compensation is a prerequisite to action: 0. R. & N. Co. v. Oregon Real Estate Co., 10 Or. 444. Judgment for the land absolutely cannot be rendered; an easement of right of way only is secured: Id. The state acquires title to lands gradually submerged by the sea: Wilson v. Shiveley, 11 Or. 215. Grant by the legislature to railroad company of the use of public levee previously dedicated to the public in a city, providing for the protection of the rights of the public in accordance with the dedication, is not invalid, and is not a diversion of the public use: P. & W. V. R. R. Co. V. Portland, 14 Or. 188. Railroad Company incorporated by special act may, if it so elects, proceed to condemn lands under the general statute: Cascades R. R. Co. v. Sohns, 1 W. T. 557. 2. Proceedings and Practice. Parties may consent to try issues as to whether the land is subject to appropriation, and its value, together, though statute contemplates separate trials: Oregon Cascade R. R. Co. v. Daily, 3 Or. 1G4. Duties of jurors on viewing premises, stated: Id. When plaintiff sues to condemn sixty feet in width, can- not prove and ask verdict for value of forty-five feet: Id. Statement furnished assessor not admissible to prove value: Id. Assessment roll not admissible to prove value: Id. Land held by one corporation defendant, plaintiff corpora- tion cannot show that defendant holds solely for mo- noply and to prevent competition: Id. Forfeiture by one corporation cannot be tried in action to condemn by another: Id. Too late after verdict to claim that jury did not have a full view of premises: Oregon Cascade R. R. v. Oregon Steam Nav. Co., 3 Or. 178. 232 Eminent Domain. Eminent Domain (continued). Defendant was permitted to open and close under certain pleadings: Oregon & Cal. R. R. Co. v. Barlow, 3 Or. 311. Money paid into court to satisfy judgment under protest ordered paid to defendant: Id. Defendant cannot on same trial contest right to condemn and try question of damages: Oregon Central R. R. Co. V. Wait, 3 Or. 428. Value of land taken, irrespective of improvement thereof, is the only damage, when benefits and damages to other lands of defendant are equal: Id. Only on payment into court of damages assessed can court render judgment condemning the lands, and no judgment not in accordance with- the statute can be given: Oregonian R'y Co. v. Hill, 9 Or. 377; Oregon R'y Co. v. Bridwell, 11 Or. 282. Judgment in personam, without assessment of damages, cannot be rendered by default: Id. Verdict in action to condemn land for railroad, what suf- ficient: Oregon R'y Co. v. Bridwell, 11 Or. 282. Judgment in personam not permissible; should appropri- ate right of way after damages assessed: Id. 3. Compensation and Damages. Neither railroad nor defendant is obliged by law to fence their common boundary, and the expense of fencing is not to be considered as element of damages: Oregon Central R. R. Co. v. Wait, 3 Or. 91; S. C, 3 Id. 428. Value of land taken, and amount of injury in excess of benefits resulting from the construction of railroad, is the compensation to be allowed: Id.; Willamette Falls C. & L. Co. V. Kelly, 3 Or. 99. If plaintiff does not make all owners defendants, it is no ground for reducing damages: Willamette Falls C. & L. Co. V. Kelly, 3 Or. 99. Water power taken or rendered less valuable may be con- sidered in estimating damages: Id. Value at commencement of the action is the amount to be paid: Or. & Cal. R. R. Co. v. Barlow, 3 Or. 311. Estimate should not include timber cut down by plain- tiff: Id. Danger from fire or cost of removal of barns may be con- eidercd: Id. Equity. 233 Eminent Domain (continued). Water ponded on defendant's land by improper construc- tion not to be considered; otherwise, if result follows from proper construction: Id. Measure of damages by reason of opening road: Terwil- liger V. Multnomah County, 6 Or. 295; Putnam v. Douglas County, 6 Or. 328. Damages and benefits on opening street: Portland v. Kamm, 5 Or. 362; Van Sant v. Portland, G Or. 395; Portland v. Lee Sam, 7 Or. 397; Portland v. Kamm, 10 Or. 383. Tender and payment into court is an admission of dam- ages to the amount of the tender: 0. R. & N. Co. v. Oregon Real Estate Co., 10 Or. 444. "Where railroad has once paid a person afterwards ascer- tained not to be the owner, in an action against the true owner, the latter cannot enhance his damages by prov- ing the value of the improvements built by the com- pany in the mean time: O. R. & N. Co. v. Mosier, 14 Or. 519. Employers and Employees. See Master and Servant. Entry. See Easements; Ejectment; Evidence; Judgments and Decrees; Public Lands. Equalization. See Taxation. Equitable Estoppel. See Estoppel. Equity. See Accounting; Actions and Suits; Appeal and Error; Boundaries; Cloud on Title; Complaints; Cor- porations; Divorce; Fraud and Deceit; Fraudulent Conveyances; Injunction; Judgments and Decrees; Jurisdiction; Liens; Lost Papers; Mistake and Acci- dent; Mortgages; Notice; Pleading; Practice; Quiet- Tug Title; Reformation; Rules of Court; Specific Per- formance; Trusts and Trustees. 1. Principles and Jurisdiction. 2. Pleading. 3. Practice. 1. Principles and Jurisdiction. Where one of two must suffer by the act of one, it should be he who caused the injury: Coleman v. Stark, 1 Or. 115. Where a court of law has taken jurisdiction, equity will not interfere, where jurisdiction is concurrent, and there 234 Equity. Equity (continued). is adequate remedy at law: Wells, Fargo, & Co. v. Wall, 1 Or. 295. Equity will not relieve from effects of ignorance of a fact, in absence of mistake, accident, or fraud: Fahie v. Pressey, 2 Or. 23. Equity will entertain jurisdiction in absence of remedy at law to set aside void tax deed, or to enjoin a void sale for taxes: King v. Portland, 2 Or. 14G. Equity will not review or correct the proceedings of direc- tors of a corporation on the ground of fraud, unless there be ground for the displacement of the officers, or for a final winding up of the affairs of the corporation: Hedges v. Paquett, 3 Or. 77. Bills for review are original suits under the Code, and defense is made by answer: White v. Allen, 3 Or. 103. To set aside a voidable deed, application should be ad- dressed to equity side of the court: King v. Peoples' Trans. Co., 3 Or. 189. A grantor who seeks to show his own deed is voidable has no standing in equity while he retains the purchase- price: Id. Not all facts that constitute defense will afford affirmative equitable relief: Kennard v. Sax, 3 Or. 263. Bills for review are entertained by virtue of the original not appellate jurisdiction of the Circuit Court: Id. Where judgment erroneous, but debt justly owing, equity will not interfere: Id. Except for error appearing of record, bills for review are not entertained without a showing of excuse for not having presented the facts for determination on former trial: Norton v. Harding, 3 Or. 361. When equity relieves from contract for sale of land where amount falls short: Failing v. Osborne, 3 Or. 498. By dispensing with the classification of bills, the Code does not take away any cause of suit: Ileatherly v. Iladley and Owen, 4 Or. 1. Having obtained jurisdiction for one purpose, equity will hold it for all purposes connected with the transaction: Id.; Howe v. Taylor, 6 Or. 284; Phipps v. Kelly, 12 Or. 213. To ascertain where a lost, stake was set may be deter- Eqlity. 235 Equity (continued). mined in law as well as in equity: Lewis v. Lewis, 4 Or. 177. Equity alone can protect the franchise of a road company from proceedings to lay out county road: C. & G. Road Co. V. Douglas Co., 5 Or. 280. Equity can, and under statute must, declare forfeiture for usury: Chapman v. State, 5 Or. 432. ■ Will make contract operate according to the intent, but will not reconstruct void contract: Evarts v. Steger, 6 Or. 55. Jurisdiction to establish lost instruments is not taken away by statute allowing secondary evidence of the contents: Howe v. Taylor, 6 Or. 284. Having acquired jurisdiction to establish lost official bond, equity will administer complete relief, and decree payment by sureties of their liability thereon: Id. Equity will entertain jurisdiction of sale fraudulent for deceit, although an action for deceit would lie: Smith V. Griswold, 6 Or. 440. A court of equity is the proper forum for administering relief against stockholders in favor of creditors of a cor- poration: Bush V. Cartwright, 7 Or. 329. Suit may be maintained by wife to recover her one third of property owned by husband at time of divorce, un- known to her at that time: Weiss v. Bethel, 8 Or. 522. Equity will not set aside a sale under a judgment void on its face, where there is a remedy by ejectment: Far- ris v. Hayes, 9 Or. 81. Creditor's bill on the ground of fraud, to set aside fraudu- lent decree and sale where plaintiff has acquired a lien hy attachment, will give equity jurisdiction, though there may be a remedy at law, and though no execu- tion is issued: Bremer & Co. v. Fleckenstein and Mayer, 9 Or. 26G. Equity will assume jurisdiction to complete a dissolution and accounting between partners, partly effected, but ■ not fully accomplished: Gleason v. Van Aerman, 9 Or. 343. Relief against a trespass, remediable by damages at law, cannot be had in equity: Weiss v. Jackson Co., 9 Or. 470; Smith v. Gardner, 12 Or. 221. 236 Equity. Equity (continued). Equity jurisdiction and remedies in case of actual or con- st.r active fraud: Shively v. Parker, 9 Or. 500. Objection that plaintiff has a remedy at law is waived by pleading to the merits without such defense: Kitcher- side V. Myers, 10 Or. 21; Baker v. Woodward, 12 Or. 3. Homestead claimant is entitled to relief in equity against one who keeps him from entering, without title: Id. Remedy for damage by injunction must be found at law, not in equity: Ruble v. Coyote G. & S. M. Co., 10 Or. 39. Tax-payer is entitled to sue in equity to prevent fraudu- lent or illegal use of county funds: Carman v. Wood- ruff, 10 Or. 133; White v. Commissioners, 13 Or. 317. When equity will interpose to relieve a defendant from a judgment he has allowed to be taken against him at law: 0. R. & N. Co. v. Gates, 10 Or. 514. Proceeding supplemental to execution, being at law, cannot embrace right to foreclose: Knowles v. Herbert, 11 Or. 54. Distinctions between actions at law and suits in equity has not been abolished by Code in Oregon: Burrage v. B. G. &Q.M. Co., 12 Or. 169. Where the right is cognizable and enforceable in a court of law, resort must be had there rather than in equity: Phipps V. Kelly, 12 Or. 213. But when equity originally had jurisdiction of a class of cases, its jurisdiction is not lost by statute affording a legal remedy in such cases: Id. The act of 1878 (sec. 2874, Hill's A. L.), providing for en- forcing a liability against a wife for family expenses, does not oust the original jurisdiction of equity over married women's rights of property: Id. Court cannot determine questions of principal and surety between defendants jointly liable in a foreclosure suit, where not necessary to the foreclosure: Hovenden v. Knott, 12 Or. 267. When creditor's bill may be filed to restrain or set aside fraudulent assignment and misapplication of funds of assignor for benefit of creditors: Dawson v. Coffey, 12 Or. 513. Mistake in a deed must be relieved in equity, and cannot be shown by parol as a defense in ejectment when such Equity. 237 Equity (continued). proof varies the terms of the deed: Holcomb v. Mooney, 13 Or. 503. Bills of review are abolished by the Code, but the same remedy exists, and a suit to set aside a decree can be maintained on the same grounds which formerly would have supported such bill: Crews v. Richards, 14 Or. 442. But such suit cannot be maintained where the grounds re- lied upon were known and could have been used in the former suit: Id. Attachment affords sufficient lien to enable equity to take jurisdiction to set aside a fraudulent conveyance: Daw- son V. Sims, 14 Or. 561. Equity will interfere for the protection of a person of weak mind who has by undue influence been induced to enter into an inequitable contract: Ward v. Buckley, 1 W. T. 279. Act of the legislative assembly destroying distinctions be- tween law and equity, and prescribing a single form of action to establish and enforce private rights, is in viola- tion of the Organic Act, and void: Stevens v. Baker, 1 W. T. 315. In the absence of a local equity system, the equity rules of the United States Supreme Court are binding on the territorial courts in chancery cases: Id. Issuance of patent is such a final decision of the executive department of the government respecting public lands as will give the courts jurisdiction, at suit of person seek- ing to set the patent aside: Shockley v. Brown, 1 W. T. 4G3. The distinctions between actions at law and suits in equity, ia- matters of procedure, under the several codes suc- cessively adopted in Washington Territory: Garrison v. Cheeney, 1 W. T. 489. City, in prosecuting a suit to abate nuisance, acts for the public, and is entitled to proceed in equity in the first instance: Moore v. Walla Walla, 2 W. T. 184. Failure of defendants to demand jury trial waives their right to object that plaintiff had a remedy at law: Id. Proceedings supplemental to execution, though attached to law case, are of equitable cognizance : Murne v. Schwa- bacher Bros. & Co., 2 W. T. 191. 238 Equity. Equity (continued). Court of equity will grant no relief to a party claiming un- der a sham decree: Connoly v. Cunningham, 2 W. T. 242. A suit in equity may be maintained against a person col- lecting money from a debtor without authority, if it be shown the debtor is insolvent: McCoy v. Ayers, 2 W. T. 307. Court of equity cannot review a finding of fact by a com- petent tribunal, unless the finding is impeached for fraud or mistake: Sparks v. Brown, 2 W. T. 426. So in the absence of fraud or mistake, a court of equity will not review decision of secretary of interior upon a question of mixed law and fact: Id. Even when an equitable defense is rnade in action at law, jurisdiction is determined by presuming everything of common-law cognizance, until the necessity of equity jurisdiction appears: Id. 2. Pleading. Misjoinder and multifariousness are grounds for demurrer: White v. Delschneider, 1 Or. 254. If matter excepted to for impertinence be responsive to bill, exception not allowed: Lownsdale v. Portland, 1 Or. 881. Equitable defense could be pleaded in action at law under section 93 of Code as amended: Delay v. Chapman, 2 Or. 242. Essential to equitable defense that there be no legal de- fense: White V. Allen, 3 Or. 103. Material facts that did not exist at the commencement of suit may be set up by supplementary answer: Id. When answer sets up complete legal defense, cross-bill in equity under section 377 of the Civil Code (sec. 381, Hill's A. L.), cannot be filed: Dolph v. Barney, 5 Or. 191; Scheland v. Erpelding, 6 Or. 258. Facts forming but a partial defense to the action, requir- ing interposition of equity, if defendant has no remedy at law, may be set up bv cross-bill: Hatcher v. Briggs, 6 Or. 31. Failure to plead equitable defense by cross-bill does not prevent defendant from suing thereon as an original bill: Hill v. Cooper, 6. Or. 181. Equity. 239 Equity (continued). Defendant in divorce suit may file cross-bill, and demand and receive aflirmative relief: Dodd v. Dodd, 14 Or. 338. Bills for review are original suits under Code, and defense is made by answer: White v. Allen, 3 Or. 103. 3. Practice. Voluntary appearance of defendant does not waive time to plead, but defects of service and informalities in the process only: Harker v. Fahie, 2 Or. 8^. Amendment of Code allowing equitable defenses in ac- tions at law is valid, and a radical change: Delay v. Chapman, 2 Or. 242. Issues of fraud and mismanagement of directors of cor- poration submitted to a jury: Hedges v. Paquett, 3 Or. 77. Defective decree may be reformed under a prayer for gen- eral relief: White v. Allen, 3 Or. 103. An answer in equity case which denies plaintiff's whole cause of suit, and sets up a counterclaim, is not such a pleading of counterclaim as to prevent nonsuit: Dove V. Hayden, 5 Or. 500. Question of fact may be submitted to a jury, and their verdict read in evidence at the trial: Swegle v. Wells, 7 Or. 222. The general equity practice must be looked to to deter- mine when a jury is proper: Id. If the facts are strongly controverted and the evidence nearly equally balanced, or if the difficulty upon the facts is too great to be removed by a master, an issue may be tried by jury: Id. The verdict is not conclusive on appeal, but will not be disregarded unless clearly contrary to the evidence: De Lashmutt v. Everson, 7 Or. 212; Swegle v. Wells, 7 Or. 222. On proper showing, relief may be granted, whether prayed for or not: Gilmore v. Gilmore, 7 Or. 374. Evidence of collusion cannot be received after an order allowing interpleader is made: Fahie v. Lindsay, 8 Or. 474. Practice in foreclosure suit where several defendants, claiming inconsistent rights, answer each other: Ladd and Tilton v. Mason, 10 Or. 308. 240 Equity. Equity (continued). Amendment of 1885 (sec. 397, Hill's A. L.), regarding manner of taking testimony and appeals in equity cases, applies only to ordinary suits, not to collateral and special proceedings: Martin v. Martin, 14 Or. 165. Effect of said amendment of 1885, respecting trial of equity cases, is to repeal the sections of the Code providing for taking depositions after issue joined, and also provisions authorizing employment of short-hand reporter: Marks & Co. v. Crow, 14 Or. 382. And it seems that such amendment prevents taking depo- sitions de bene esse, excepting where reference has been had to find the facts, or to find the facts and law: Id. Where statute regulating proceedings in a suit is enacted, altering the mode of procedure, it will not affect pro- ceedings already had in pending cases: Id. So depositions taken before such amendment took effect may be considered after the sections providing for tak- ing depositions are repealed: Id. Equity practice and procedure, and distinctions between suits in equity and actions at law, under the several codes, successively adopted in Washington Territory: Garrison v. Cheeney, 1 W. T. 489. Erasures. See Alteration of Instruments. In judgment, court will not presume prejudicial to ac- cused in criminal case: Jennings v. State, 1 Or. 290. In written instrument may be explained by parol, and such evidence does not contradict the writing: Wren v. Fargo, 2 Or. 19. In record, where record is used to contradict certified copy, must be fully explained: Dolph v. Barney, 5 Or. 192. It should be proved that the certified copy was not a true copy when made: Id. Error. Sec Appeal and Error. Estates of Decedents. See Administration; Administra- tors and Executors; Heirs; Legacies; Wills. Estoppel. Kecital in a deed of the existence of a mortgage estops grantee from denying the same: Holmes v. Ferguson, 1 Or. 220. Parties and privies are bound by recitals of deed through which they claim title; Id. Estoppel. 241 Estoppel (continued). Parties are bound by recitals in their deed; and this ap- plies to married women: Graham v. Meek, 1 Or. 325. A decree cannot be pleaded as an estoppel against one not a party or a privy: Lownsdale v. Portland, 1 Or. 381. Dedication or release without covenants, by mere occu- pant of public land in Oregon, prior to 1850, does not bind: Lownsdale v. Portland, 1 Or. 397. City estopped l)y adopting a map as official, which does not show the disputed strip as public property: Id. "Wife not estopped to claim her land because of silence during suit against husband to foreclose his mortgage thereon, in which suit she is not made a party: Fahie V. Pressey, 2 Or. 23. Quitclaim deed does not estop grantee from showing his grantor had no estate to which dower attached: Far- num V. Loomis, 2 Or. 29. Party otherwise estopped may avail himself of the truth, when same fact is shown by adversary's pleadings: Lee V. Summers, 2 Or. 260. One cannot dispute a title which he sets up, and upon which he bases all his rights: Eagle Woolen Mills Co. V. Monteith, 2 Or. 277. Making or agreeing tx) make quitclaim deed of the gran- tor's title, derived from a certain source, does not estop maker from buying, subsequently, an outstanding title, and holding same land: Shively v. Welch, 2 Or. 288. Grantor seeking to show his own deed voidable has no standing while retaining purchase-money: Kelly v. People's Trans. Co., 3 Or. 189. Recital of due service of summons in decree does not estop when return shows the niode of service, and the same is insufficient: Heatherly v. Hadley and Owen, 4 Or. 1. A recital in a decree that " notice has been given in due form of law," will not preclude a party from denying the jurisdiction of the court in a suit brought to reform the decree: Id. If seisin or possession of a particular estate is affirmed in a deed, expressly or by implication, the grantor is estopped to deny: Taggart v. Risley, 4 Or. 235. Estoppel by deed; nature and extent of the rule: Id.; Bayley v. McCoy, 8 Or. 259. Ob. Diq.— 16 242 Estoppel. Estoppel (continued). Stockholder present and assenting to by-law adopted at stockholders' meeting is estopped from questioning the legality of assessments on the stock made by such by- law: Willamette Freighting Co. v. Stannus, 4 Or. 261. In ejectment, where both parties claim title from same source, neither can impugn it: Dolph v. Barney, 5 Or. 191. Minor arriving at age, and receiving proceeds of guar- dian's sale on partition, is estopped to deny the validity of the sale, and is presumed to ratify the same: Brazee V. Schofield, 2 W. T. 209. A party who has deliberately, by his declaration, induced a party to believe a particular thing true, cannot, in subsequent litigation, falsify it, under section 765, sub- division 4, of the Code (sec. 775, Hill's A. L.): Col- lins V. Delashmutt, 6 Or. 54. Estoppel must be pleaded to be taken advantage of: Rugh V. Ottenheimer, 6 Or. 231; Remillard v. Prescott, 8 Or. 37. Grantor and his privies are estopped to deny title to which they have given general warranty: Wilson v. McEwan, 7 Or. 87. Holder of negotiable paper purchased with notice of equities cannot urge as estoppel against maker, who had no knowledge of the fraud at the time, the latter before the purchase told him he had no objection to his buying the note from the payee: De Lashmutt v. Ever- son, 7 Or. 212. Suflicient negligence shown in this case, in executing quit- claim deed, to estop grantor from asserting after-ac- quired title: Dorris v. Smith, 7 Or. 267. Mortgagor in possession cannot claim his possession unlaw- ful, when sued for rents and profits: Renshaw v. Taylor, 7 Or. 315. Party is not precluded from asserting his title by his acts in causing a Btreet improvement affecting the property to be paid by the other party, where the acts are not relied on by the latter in making such payments: Par- ker V. Taylor, 7 Or. 435. Acceptance by wife of money paid by husband in lieu of her equitable interest in his laud, pursuant to decree Estoppel. 243 Estoppel (continued). granting her divorce, estops her from making further claim to the land: Brooks v. Ankeny, 7 Or. 4G1. The rule that a tenant cannot dispute his landlord's title binds the sucoessors of the first tenant: Jones v. Dove, 7 Or. 467. All stockholders, and the corporation, arc chargeable with notice of the conditions of subscriptions to stock, and there is no estoppel between them: Coyote G. & S. M. Co. V. Ruble, 8 Or. 284. Mere silence works no estoppel, unless it becomes fraud: Hugell V. Kinney, 9 Or. 250. Knowledge of the publication of an offer of reward over defendants' signature, unauthorized by them, does not estop them by their mere silence: Id. Quitclaim of dower by wife in husband's deed does not operate to estop her from claiming an existing or after- acquired fee-simple interest: Burston v. Jackson, 9 Or. 275. Mere expressions of opinion of location of boundary, made by former owner without fraud, do not estop: Goddard v. Parker, 10 Or. 102. No estoppel arises by allowing a person to erect improve- ments where he is given notice promptly: Id. The burden is on the one asserting estoppel as a defense to prove that the land was purchased with reference to and in rehance on a certain map as claimed, showing boundaries different from those set up: Id. Party accepting itemized account demanded, and not ob- jecting until trial, to the form of verification, is estopped: Robbins v. Benson, 11 Or. 514. Judgment by default operates by way of estoppel, as if there had been a verdict for plaintiff: Neil v. Tolman, 12 Or. 289. Abutting lot-owner, encouraging by acts indicating con- sent, the improvement of a street by a city, is estopped thereafter to question the legality of the improvement: Hawthorne v. East Portland, 13 Or. 271. Plea of estoppel neither admits nor denies the facts alleged in the complaint, but denies plaintiff's right to allege them: Page & Co. v. Smith, 13 Or. 410. To work estoppel, the party must have deliberately and M4 Estoppel. Estoppel (continued). intentionally misled another to believe a thing true and to act upon it: Id. Lot-owner having granted the right of building a wharf in front of his lot on tide-water, his subsequent grantee of the lot is estopped by his deed from objecting to its maintenance: McCann v. Oregon R'y etc. Co., 13 Or. 455. City cannot take advantage of not having approved or disapproved of the work done under contract, as is pro- vided by the contract to be done before payment is to be made, when six months have elapsed before suit, to avoid payment of a just claim: N. P. L. & M. Co. v. East Portland, 14 Or. 3. University corporation, having availed itself of the services of a military instructor, cannot defend, in an action for compensation, on the ground that it never passed an ordinance employing him: Tyler v. T. of T. A. & P. U., 14 Or. 485. Establishment, by a party, of surveys and boundaries to his lands, estops him from resisting a tax for want of identification of the property, founded on such descrip- tion: Puget Sound Agricultural Co. v. Pierce County, 1 W. T. 159. Owners of lots abutting alley, who petitioned city trus- tees to vacate alley and replut adjoining block, are es; topped from questioning rights so acquired: Burmeister V. Howard, 1 W. T. 207. Defendant in criminal case and his counsel, having con- sented to separation of the jury, should be estopped from objecting thereto on appeal: liartigan v. Territory, 1 W. T. 447. By accepting the fruits of a decree, party is estopped from appealing therefrom: Lyons v. Bain, 1 W. T. 482. Plaintiff in action to recover possession of real property is not estopped by his silence or conduct, wben thereby he neither induced the defendant to go into or remain in possession: Bullene v. Garrison, 1 W. T. 587. Grantee of city lot, by deed referring to recorded plat, is estopped from denying existence of abutting street shown on such plat, and he cannot set U]) title to such street acquired before platting, or claim by adverse possession: Moore v. Walla Walla, 2 W. T. 184. Evidence. 245 Estoppel (continued). Claimant under patent, issued to widow and heirs of de- ceased donation claimant, is conclusively estopped from denying that the widow and heirs acquired title under that act: 2 W. T. 209. "What is necessary to create account stated by way of es- toppel: Baxter v. Waite, 2 W. T. 228. Estrays. Definition; animal on the range where raised is not an estray: Shepherd v. Plawley, 4 Or. 206. Animal must be breachy or vicious to be taken up in August or September as an estray: Id. Evidence. See Adverse Possession; Agency; Boundaries; Corporations; Criminal Law; Dedication; Deeds; Depo- sitions; Ejectment; Fraud; Fraudulent Conveyances; Homicide; Insanity; Partnership; Payment; Pleading; Practice; Seduction; Suretyship; Trusts; Variance; Witnesses. 1. Judicial Notice. 2. Presumption's. 3. Burden of Proof. 4. Best Evidence. 5. Records as E\idence. 6. Documentary Evidence. 7. Books Kept in the Course of Business. 8. Parol Evidence. 9. Opinion Evidence. 10. Character Evidence. 11. Res Gest^. 12. Declarations and Admissions. 13. Dying Declarations. 14. Confessions. 15. Repute. 16. Perpetuation of Evidence. 17. Generally and Relevancy. 1. Judicial Notice. Where officer taking affidavit, omitted venue therein, but resided in the district of the court, his authority recog- nized: Dennison v. Story, 1 Or. 272. Courts take notice of laws by which school superintend- ents sell school lands to individuals: Dolph v. Barney, 5 Or. 192. 246 Evidence. Evidence (continued). Courts do not take judicial knowledge of the laws of for- eign countries; they must be proved as facts: State v. Moy Looke, 7 Or. 54, Nor of a local custom to appropriate water flowing in streams: Lewis v. McClure, 8 Or. 273. Court takes judicial notice of navigability of streams, and also legal subdivision of public lands and governinent surveys: Shaw v. Oswego Iron Co., 10 Or. 371. The court takes notice that the Tualatin River is not a na\agable stream, and that the United States has sur- veyed and sold the bed of that river by the acre as though it was dry land: Id. That a general war between Indian tribes was waging at a certain time: Yelm Jim v. Territory,. 1 \V. T. 63. That the city of Seattle, mentioned in the venue of an in- dictment, is in King County: Schilling v. Territory, 2 W. T. 283. 2. Presumptions. Where officer is known, court presumes he acted within his jurisdiction: Dennison v. Story, 1 Or. 272. Where paper among the records of the case was indorsed " F. S. Holland," it is presumed F. S. Holland is the clerk of the court: Carothers v. Wheeler, 1 Or. 196. Dedication of land to public uses is not presumed against the owner, but must be clearly proved: LownsdaM v. Portland, 1 Or. 397. Where return showed service in Douglas County, and was signed " sheriff," it was presumed that the person so signing was sheriff of that county: Carland v. Heine- borg, 2 Or. 75. Note in possession of makers presumed paid; disputable presumption: Hedges v. Strong, 3 Or. 18, The voluntary or intentional use of weapon calculated to take life raises presumption of malice: State v. Bertrand, 3 Or. 61. That the consideration expressed in a deed is the true price may he rebutted: Stark v. Olney, 3 Or. 88. Every intendment in favor of judgment of court of com- petent jurisdiction: Groslouis v. Northcut, 3 Or. 394; Fulton V. Earhart, 4 Or. 61; Tustin v. Gaunt, 4 Or. 305. Evidence. 247 Evidence (continued). After general verdict for plaintiff, every material allega- tion in complaint is presumed found true: Torrence v. Strong, 4 Or. 39. Judgment creditor presumed to have lost his debt, when sheriff has failed to levy or make return: Moore v. Floyd, 4 Or. 101. State treasurer is presumed to know what appropriations have been made: Brown v. Flcischner, 4 Or. 132. It is presumed that every written contract contains all its terms; mistake is not presumed: Evarts v. Steger, 5 Or. 147. That officer is regularly appointed, and that his duty is regularly performed: Dolph v. Barney, 5 Or. 192. Though the presumption of innocence is preferred rather than the presumption of life when the two conflict, the question should be determined by the jury, where the legality of a marriage was in issue,from all the evidence: Murray v. Murray, 6 Or. 17. On application for leave to issue execution on dormant judgment, f;ame presumption in favor of the judgment exists as on collateral attack: Strong v. Barnhart, 6 Or. 93. Presumed that service was made in the county of the officer making the return: Roy v. Horsley, 6 Or. 270. That the attorney served was a resident of the county where he was served and practicing: Id. When a transaction is capable of construction consistent with good faith, fraud is not presumed: Hurford v. Harned, 6 Or. 362. Probate court of the territory was of limited and inferior jurisdiction, and no presumption exists in favor of its judgments: Farley v. Parker, 6 Or. 105. The presumption in favor of the regularity of the proceed- ings, provided by charter of Portland, in improving streets, applies only after jurisdiction is obtained: Van Sant V. Portland, 6 Or. 395; N. P. T. Co. v. Portland, 14 Or. 24. Retention of chattels by vendor after sale creates a dis- putable presumption of fraud as against creditors: Mc- Cully V. Swackhamer, 6 Or. 438. On proof of due execution of will, it is presumed to ex- 248 Evidence. Evidence (continued). press testator's unrestrained and uninfluenced intention: Greenwood v. Cliue, 7 Or. 17. Giving of promissory note is prima facie evidence of ac- counting and settlement: Matasce v. Hughes, 7 Or. 39. The presumption that a person not in possession of a note has no authority to receive payment may be rebutted: Swegle V. Wells, 7 Or. 222. Verdict is presumed as broad as the issues to be passed upon: Reed v. Gentry, 7 Or. 497. The presumption is, that assignment, though preferring unsecured creditors, is not fraudulent: Kruse v. Prindle, 8 Or. 158. That a person entering under color of title enters and oc- cupies to the boundaries expressed in his deed: Phil- lippi V. Thompson, 8 Or. 428. In action on a lost ofhcial undertaking, that the same was legally and duly executed: Howe v. Taylor, 9 Or. 288. On appeal, reply is presumed to have been filed, where findings cover all new matter in answer: Weissman v. Russell, 10 Or. 73. Canceled county orders in the possession of the county treasurer, duly indorsed, are presumed paid: Portland v. Besser, 10 Or. 242. Bills against a county, in favor of a certain person, in the clerk's office, and for which warrants have duly issued, are presumed to have been presented and filed by such person: Id. No presumption of guilt from the fact of taking goods, if they were taken believing them lost or abandoned: State V. Swayze, 11 Or. 357. The only presumption arising from the possession of prop- erty recently stolen is one of fact, not of law: State v. Hale, 12 Or. 352. Statutes of another state arc not presumed to be like our "own: Balfour v. Davis, 14 Or. 47. The record showing process to have been served by a coro- ner, the presumption is that sheriff was laboring under the disabilities that make it incumbent on coroner to act in his stead: Rodolph v. Mayer, 1 W. T. 133. In capital cases, there is no presumption in favor of the regularity of the proceedings: Shapoonmash v. United States, 1 W. T. 188. • Evidence. 249 Evidence (continued). Presumption of the correctness of an account arises from the rendering of the account, and the absence of objec- tion thereto within reasonable time: Baxter v. Waite, 2 W. T. 228. 3. Burden of Proof. Is on shipper to show value of goods injured by carrier: Seller v. Steamship Pacific, 1 Or. 409. On defendant, to show he contracted as agent, and that plaintiff had notice: McCall v. Elliott, 3 Or. 138. In election contest, party attacking voter who has voted must show his disqualification: Darragh v. Bird, 3 Or. 229. The plaintiff, a contractor, suing city and claiming a cer- tain estimate set forth in his contract was a mistake, has the burden to show that fact: Northrop v. Portland, 3 Or. 258. Selling liquor without license, burden on defendant to show that he is licensed: State v. Cutting, 3 Or. 260. On party attacking record of County Court in probate matters: Russell v. Lewis, 3 Or. 380. On sheriff, to show that plaintiff in execution has not lost his debt, where he has failed to levy or make return: Moore v. Floyd, 4 Or. 101. In action to recover real property, where plaintiff's title is denied, burden on him to show title: Farley v. Parker and Sutherland, 4 Or. 269. In equity case, where the testimony of the plaintiff and defendant is in conflict and unsupported, the plaintiff cannot obtain relief, since there is no preponderance in his favor: Smith v. Griswold, 6 Or. 440. Burden is on the plaintiff, suing on note given as collateral security for the payment of another note, to show that both are due and unpaid: Moore v. Miller, 7 Or. 486. Answer pleading non-performance of an agreement as failure of consideration, and reply denying non-per- formance, burden is on plaintiff to show performance: Briscoe v. Jones, 10 Or. 63. Burden of a defense of estoppel by matter of record must be sustained by defendant: Goddard v. Parker, 10 Or. 102. Party alleging negligence must sustain the burden of proving it: Walsh v. Oregon R'y & Nav. Co., 10 Or. 252. 250 Evidence. Evidence (continued). He must prove that the injury was caused by the negli- gence of the defendant, and was not due to his own neg- ligence and want of care: Id. Person claiming benefit of written tender assumes the burden of proving his ability to pay at the time: Ladd and Tilton v. Mason, 10 Or. 308. Instruction that burden of proof was on the plaintiff; held, not error where not objected to for its generality, though as to some issues defendant had the burden: Rogers v. Wallace, 10 Or. 387. In criminal cases, the defense of insanity must be proved by the defendant beyond a reasonable doubt: State v. Murray, 11 Or. 413. Burden is on a defendant in ejectment in a contest be- tween legal titles on assailing plaintiff's title for notice and want of consideration: Mclntyre v. Kamm, 12 Or. 253. Is on a debtor claiming property as exempt from execu- tion, to prove affirmatively all facts necessary to estab- lish it- Stewart v. McClung, 12 Or. 431. Where a debtor conveys all his property to his brother in payment of an alleged debt due hira, in a suit by crcvl- itors to set aside the deed the burden is on the grantee to prove a valuable and adequate consideration: Marks & Co. V. Crow, 14 Or. 382. Failure to object within reasonable time to an account rendered raises a presumption of the correctness of the account, and shifts the burden of proof: Baxter v. Waitc, 2 W. T. 228. 4. Best Evidence. Voluntary statement by witness of the contents of a writing which is not in evidence is cured if he at same time produce same: White v. Allen, 3 Or. 103. The original and a record copy of an official undertaking being lost or stolen, parol evidence of the contents of the copy may be shown, on proof of the correctness of such copy, though such record is not required by law to be kept: Howe v. Taylor, 9 Or. 288. Existence and contents of a deed being in issue, deed must l)e produced or non-production accounted for be- fore parol proof of such facts is admissible: Smith v. Cox, 9 Or. 327. Evidence. 251 Evidence (continued). The rule is the same, though the deed was between third parties, and void for incapacity of grantor: Id. Correctness as well as loss of original memorandum, be- fore secondary evidence of its contents is admissible, must be proved: T. & McK. v. M. & B., 9 Or. 405. Copy taken without comparison to ascertain its correct- ness, made by witness from original from which another person read off the items, is admissible when the origi- nal cannot be produced: Id. Certified copy of a certified copy is not admissible as evidence: Goddard v. Parker, 10 Or. 102. Oral evidence of the condition and appearance of a hat, when material, is admissible without producing or ac- counting for absence thereof: Ileneky v. Smith, 10 Or. 349. Secondary evidence of the contents of a certified copy of an answer is admissible upon proof of the loss of the original, and of such copy: Williams v. Gallick, 11 Or. 337. On the loss of a writing being proved, a witness knowing its contents may testify in regard thereto: Williams & Co. V. Miller & Co., 1 W. T. 88. Deed itself is highest evidence of its contents, whether before or since the registration laws, the execution and delivery having been first duly proved: Skellinger v. Smith, 1 W. T. 369. The record of a deed showing it to bear a given date must yield to the deed itself, showing a different date: Id. 5. Records as Evidence. Authentication by judge of record of any state must show afiirmatively he is the judge, chief justice, or presiding m:agistrate: Pratt v. King, 1 Or. 49; contra, Keyes v. Mooney, 13 Or. 179. The official character of the judge must appear from his own certificate: Id. Manifest clerical error in date in certificate of authenti- cation should be disregarded: Id. Recorded plat is not evidence of the existence of a road, but of its location: Naylor v. Beeks, 1 Or. 216. The express provisions of the statute affecting authenti- cation of deed out of the state must be strictly com- plied with: Knighton v. Smith, 1 Or. 276. 252 Evidence. Evidence (continued). Court will not look outside of justice's docket to learn that special constable was not duly appointed: White v. Thompson, 3 Or. 115. Certificate of board of election canvassers is the record of their decision: Warner v. Myers, 3 Or. 218. Mistake in dates; error in record presumed rather than that order of sale of property in probate was made before the return day: Russell v. Lewis, 3 Or. 380. What papers belong to judgment roll in probate; the whole record may be introduced to deny jurisdiction recited in part thereof: Gilmore v. Taylor, 5 Or. 89. County Court speaks only by its journal, and contract with the county can be proved thereby only: Douglas County Road Co. v. Abraham, 5 Or. 318. Foreign judgment regular on its face, introduced as evi- dence, ma}' be attacked by extrinsic proof of fraud or want of notice: Murray v. Murray, 6 Or. 17. Record is conclusive on the question of former adjudica- tion, where the judgment roll shows the pending suit was included in the issues: Underwood v. French, 6 Or. 66. Contract of the county duly attested can be impeached only by showing it is not genuine, cfr that its recitals are not true: Road Co. v. Douglas County, 6 Or. 299. Record of a void judicial proceeding is admissible as a private writing to show the inducement to a deed exe- cuted, and as part of the res gestae: Stinson v. Porter, 12 Or. 444. Certificate of auditor and clerk of city of Portland has no effect, excepting to authenticate copies of records of which he is custodian: N. P. T. Co. v. Portland, 14 Or. 24. Record of proceedings of city in laying out a street must show the facts as to the qualification of viewers; and the affidavit of the viewers, or the finding of the city council as to their qualification, is insufficient: Id. In an action on a bail bond, the journal of the court, showing default of the principal, is admissible in evi- dence against the surety: Clifford v. Marston, 14 Or. 426. Record of register of public land-office may be proved by certified copies: Ward v. Moorey, 1 W. T. 104. Evidence. 253 Evidence (continued). Record of a deed showing it to bear a certain date must yield to the deed itself, showing a different date: Skel- linger v. Smith, 1 W. T. 369. Records of county, showing that another county had been called upon to remove from the former county paupers of the latter kept there, does not prove the former's liability, but the contrary: King County v. Collins and Gordon, 1 W. T. 469. Indorsement on a notice of mechanic's lien of time of filing, and in what book recorded, is not evidence of the recording: Jcwett v. Darlington, 1 W. T. 601. Existence of a judgment, though not entered in journal, or bearing file mark of clerk, may be established by competent proof after death of judge who rendered it: Eakin V. McCraith, 2 W. T. 112. 6. Documentary Evidence. Intention of the writer of an instrument offered in evi- dence is a question for court, unless the writing is a part of a transaction, when the whole evidence is to be submitted to the jury: Winter and Lattimer v. Norton, 1 Or. 42. Certificate under donation land law is evidence of the facts recited therein: Keith v. Cheeny, 1 Or. 285. "Received in good order," in shipping receipt, is a recital, not an agreement, and is prima facie evidence of the fact recited: Seller v. Steamship Pacific, 1 Or. 409. Map relied upon to prove dedication must be shown to have been made or assented to by donors: Leland v. Portland, 2 Or. 46. Patent from the United States to lands held under the Donation Act proves the regularity of the preliminary jgroceedings: White v. Allen, 3 Or. 103. Certificate of board of election canvassers is evidence of their decision: Warner v. Myers, 3 Or. 218. Copy made and certified by referee as a true copy, and re- turned as an exhibit, will be sufficient in lieu of the original offered in evidence: Bohlman v. Cofiin and .Carter, 4 Or. 313. To prove leasing, a document not describing the premises is rejected for uncertainty: Noyes v. Stauff, 5 Or. 455. Deed of insane person is void, and may be impeached 254 Evidence. Evidence (continued). when offered to prove title in ejectment: Farley v. Parker, 6 Or. 105. A will is not admissible to prove title until it is probated: Willamette Co. v. Gordon, 6 Or. 175; Jones v. Dove, 6 Or. 188. Certified copies of copies of original papers in local land- office, retained there under act of Congress after origi- nals are sent to Washington, are properly admissible: Id. Deed void as a conveyance may be admitted for purpose of identifying the land: Ramsey v. Loomis, 6 Or. 367. Original will, after probate, does not have to be offered and proved when used as evidence: Jones v. Dove, 6 Or. 188. Historical works are not admissible to prove the unwrit- ten law of a country: State v. Moy Looke, 7 Or. 54. Will devising the donation claim of Bartholomew Dove may be introduced, to be followed by extrinsic proof that Bethuel Dove was meant: Jones v. Dove, 7 Or. 467. Two writings of same date, same parties, and same sub- ject-matter should be construed together: Kruse v. Prindle, 8 Or. 158. Execution of a lost paper being disputed, and a pretended copy offered in evidence, its genuineness and the fact of execution must be left to the jury: Rosendorf v. Ilirschberg, 8 Or. 240. Certified copy of certified copy is not evidence of the original, unless made so by statute: Goddard v. Parker, 10 Or. 102. Several different copies may be attached and certified by one certificate: Portland v. Besser, 10 Or. 242. Canceled county orders, in the possession of the county treasurer, duly indorsed, are presumed to have been regularly paid: Id. Bills against county, in favor of certain person in the clerk's office, and for which warrants have duly issued, are presumed to have been presented and filed by such person: Id. Tax deed, offered with tax records showing its invalidity, though regular on its face, is no evidence of title: Id.; Pe Lashmutt v. Sellwood, 10 Or. 319. E\aDENCE. 255 Evidence (continued). Documentary evidence, proving plaintiff's case, being ad- mitted, and defendant not introducing evidence contra- dictory, jury may be instructed to find for plaintiff: Id. Documentary evidence, not offered before referee to take the testimony, may be put in evidence at the hearing: Baker v. Woodward, 12 Or. 3. Printed advertisement of offer of reward by carrier is evi- dence of admission of liability for loss of money pack- age: Bennett v. N. P. Ex. Co., 12 Or. 49. Documentary evidence may be admitted provisionally, and instructions as to effect given afterward: Smith v. Shattuck, 12 Or. 362. Tax deed, though defective in description, may, when ac- companied by possession, be admitted to prove color of title: Id. Letters forming a contract, ambiguous as to the intention, may be supplemented by parol: Fisk v. Henarie, 13 Or. 156. In action for seduction, letter by daughter to defendant, and the oral reply thereto, are admissible by plaintiff, and stand on the footing of conversations between the parties: Lee v. Cooley, 13 Or. 433. Witness may translate document written in a foreign lan- guage, though not sworn as interpreter: Krewson & Co. V. Purdom, 13 Or. 563. In a controversy between successive mortgagees of chat- tels, the elder mortgage, though not renewed according to law, is admissible, to be followed by proof of vhe fraudulent character of junior mortgage: Case T. M. Co. V. Campbell, 14 Or. 460. Whether a writing constitutes a contract is a question for the court: Tolmie v. Dean, 1 W. T. 46. Letter, containing an account not objected to within a reasonable time, is evidence of the matters contained in it: Smith v. Kennedy, 1 W. T. 55. So where the genuineness of the answer to the letter is in question, the letter is admissible as a circumstance: Id. Memory of a witness may be refreshed by reference to a bill of particulars in his own handwriting: Williams & Co. V. Miller & Co., 1 W. T. 88. Memorandum of receiving agent of a ship, signed and 256 Evidence. Evidence (continued). showing the receipt of the goods for shipment and de- livery, will be considered a bill of lading: Williams v. Steamship Columbia, 1 W. T. 95. Map offered by prisoner for purpose of illustrating the situation, loaded with explanatory matter in the nature of hearsay, is properly excluded: Leonard v. Territory, 2 W. T. 381. 7. Books Kept in Course of Business, etc. Account-books, admissibility not decided generally, but error if any was waived by appellant: Henderson v. Morris, 5 Or. 24. Account-books to which both partners had access are imma facie correct on an accounting between them: Boire v. McGinn, 8 Or. 466. Bank-books entered after bank hours from tags and checks made during the day are books of original entrj^: Ladd and Bush v. Sears, 9 Or. 244. Ambiguous entries may be explained by parol, but not shown to mean something different from the import of the language: Strong v. Kamm, 13 Or. 172. Pleadings alleging a contract by which certain accounts should be transferred on the partnership books to the account of one partner, the books are proper evidence of the performance of such contract: Moore v. Knott, 14 Or. 35. 8. Parol Evidence. Contemporaneous parol evidence inadmissible to contra- dict or vary written instrument: Hoxie v. Hodges, 1 Or. 251. A contract in writing to convey land may be abandoned by parol: Guthrie v. Thompson, 1 Or. 353. In case of patent ambiguity, evidence is admissible only to fix meaning of words, the import of which is not ap- parent to the court: Brauns v. Stearns, 1 Or. 367. Admissible to explain erasure of written instrument by party offering: Wren v. Fargo, 2 Or. 19. When parties put their contract in writing, no other evi- dence of the contract admissible: Lee v. Summers, 2 Or. 260. Actual consideration different from that expressed in deed provable by parol: Brown v. Cahalin, 3 Or. 45. EWDENCE. 257 Evidence (continued). Item omitted by mistake from receipt on settlement, mis- take may be shown: Williams v. Poppleton, 3 Or. 139. But if the item was thought of at the time, receipt in full is conclusive: Id. Surrounding circumstances admissible to show general re- ceipt does not include particular item: Id. Parol evidence not admissible to show that the acknowl- edgment of a married woman was taken separate and apart from her husband, when the certificate of acknowl- edgment does not show the fact: Harty v. Ladd, 3 Or. 353. Nor to impeach acknowledgment regular on its face, un- less allegations of pleadings warrant it: Dolph v. Bar- ney, 5 Or. 192; Moore v. Fuller, 6 Or. 272. Paper purporting to be a lease, but not describing prem- ises, is fatally defective, and the ambiguity is patent and cannot be aided by parol evidence: Noyes v. Stauff, 5 Or. 455. Not admissible to show that the judgment roll introduced to prove former adjudication contains issues that were not passed upon by the jury: Underwood v. French, 6 Or. 66; Barrett v. Failing, 8 Or. 152. Admissible to prove partnership relating in part to land: Knott V. Knott, 6 Or. 142. Parol evidence is admissible to identify person or thing described in a will: Jones v. Dove, 6 Or. 188; S. C, 7 Or. 467; Moreland v. Brady, 8 Or. 303. Admissible to prove that a bill of sale was intended as a chattel moi'tgage: Bartel v. Lope, 6 Or. 321. Admissible to prove a deed absolute on its face a mort- gage: Hurford v. Harned, 6 Or. 362; Stephens v. Allen, 11 Or. 188; Albany and Santiam W. D. Co. v. Craw- ford, 11 Or. 243. Admissible to show the number of buildings and inhab- itants in a place, to prove the existence of a town, within the statute prohibiting toll-gates near towns: Milarkey V. Foster, 6 Or. 379. Admissible to connect the writing with the subject-matter of the agreement referred to therein, when the instru- ment does not fully express the same with sufficient clearness: Hannah v. Shirley, 7 Or. 115. Or. Dig.— 17 258 Evidence. Evidence (continued). Not admissible when the plea of former adjudication is interposed to show that certain of the issues covered by a judgment in a former case were withdrawn, and not litigated: Barrett v. Failing, 8 Or. 152. Parol proof of a resulting trust in land is admissible, but not of an agreement to sell the interest of the cestui que trust: Chenoweth and Johnson v. Lewis, 9 Or. 150. Rule inhibiting parol evidence to vary a writing applies especially to negotiable paper: Smith v. Caro and Baum, 9 Or. 278. Indorsement in blank cannot be explained or limited by parol: Id. In suit on bond of county clerk, where the original and the recorded copy arc lost, parol proof of the contents, the copy, and of the names of the sureties thereon, ad- missible: Howe V. Taylor, 9 Or. 288. Parol evidence is admissible to locate stake as the start- ing point in the description of a deed otherwise- definite: Boehreinger v. Creighton, 10 Or. 42. Subsequent parol contract on same subject as written agreement between the parties may be proved: Orego- nian R'y Co. v. Wright, 10 Or. 162. The appearance and condition of physical objects may be proved by parol, without producing the objects them- selves, or accounting for their absence: Hencky v. Smith, 10 Or. 349. Equity permits parol proof contradicting a writing in case of mistake, as in fraud: Smith v. Butler, 11 Or. 46. Admissible to show that a writing, purporting to be an agreement, was in fact a mere form intended for an ul- terior purpose: Branson v. Oregonian R'y Co., 11 Or. 161. Parol evidence admitted to show a deed absolute on its faae a mortgage is not to var}"^ its terms, but to estab- lish an equity superior thereto: Stephens v. Allen, 11 Or. 188. Service of notice to quit, by landlord on tenant, may be proved by parol: Chung Yow v. Hop Chong, 11 Or. 220. Delivery of written contract not under seal may be shown to have been conditional by parol: Simpson v. Carson, 11 Or. 361. Evidence. 259 Evidence (continued). Between the original parties to a note, semble, that where on its face it is uncertain, parol proof of whether prin- cipal or agent was intended to be bound is admissible: Guthrie v. Imbrie, 12 Or. 182. In crim. con. cases, marriage may be proved by cye-wit- ncsses, or by the parties: Jacobsen v. Siddal, 12 Or. 280. Where letters have passed between the parties conccrnmg a sale of lands, parol proof of the previous understand- ing in relation to the subject-matter is admissible, where the language of the letters leaves the intention in doubt: Fisk v. Henarie, 13 Or. 157. Parol proof of the pre\dous understanding of the parties in relation to a contract for sale of land, admissible, to be followed by proof of a written recognition of the con- tract, contained in letters: Id. Ambiguous entry in book of accounts may be explained by parol, but cannot be shown to mean something which its language does not import: Strong v. Kamm, 13 Or. 172. In ejectment, where the description of the land conveyed by a deed is clear and unambiguous, resort cannot be had to parol proof to show an intent to convey a differ- ent tract: Holcomb v. Mooney, 13 Or. 503. What is a latent ambiguity, and how far parol evidence is admissible to show what is meant by the description in a deed plain on its face: Id. Parol evidence is not admissible to show that an expressed condition in a bill of sale was intended as a covenant, in the absence of ambiguity in the instrument: Hale vj^^inch, 1 W. T. 566. Is properly admissible to show the circumstances under which an incomplete memorandum of sale was signed, and in what capacity the person signed it: Brewster v. Baxter, 2 W. T. 135. Whether a parol contract can be set up to show that a note secured by mortgage, absolute on its face, was con- ditional, to be void on failure of payee to execute a deed, quxre: Kenworthy v. Merritt, 2 W. T. 155. 9. Opinion Evidence. Not admissible except on questions of skill or science, 260 Evidence. Evidence (continued). where witness has no personal knowledge of the facts: Zachary v. Swanger, 1 Or. 92. Where witness states his understanding of a conversation, if it appear by his other evidence that his opinion is correct, the judgment will not be reversed, though the admission of such evidence is erroneous: Aiken and Flavel V. Leonard and Green, 1 Or. 224. Surgeons as experts in action for damages for maltreat- ment: Heath v. Glisan, 3 Or. 64; Boydston v. Giltner, 3 Or. 118. Opinion of witness as to what water power would be ap- purtenant to a tract of land, upon which he is called upon to value as an expert, is not admissible: Willa- mette Falls C. & L. Co. V. Kelly, 3 Or. 99. A witness may testify to skill used in the particular operation in an action for damages for malpractice, but not generally as to skill of defendant: Boydston v. Gilt- ner, 3 Or. 118; Williams v. Poppleton, 3 Or. 139. Witness may testify as to the meaning of technical words in a pleading, but not to the construction of the plead- ing: Williams v. Poppleton, 3 Or. 139. Opinion of medical experts as to cause of death; forms of questions depend on circumstances, and discretionary with the trial court: State v. Glass, 5 Or. 73. . Opinion of witness as to whom common repute a&cribes ownership is not admissible: Wilson v. Maddock, 5 Or. 480. Opinion of intimate acquaintance to prove insanity ad- missible, although witness does not state in express words that he is an intimate acquaintance: Farley v. Parker, 6 Or. 105. In accounting between partners, where the books da not show the true state of the business, experts cannot tes- tify as to what the profits ought to or might have been: Boire v. McGinn, 8 Or. 466. Hypothetical questions to expert witnesses must be based on the facts proved: State v. Anderson, 10 Or. 448. Experts cannot testify upon matters within the ordinary scope of observation: Id. The mere opinion of a non-expert, without the facts upon which it is based, or the opinion of an expert without Evidence. 261 Evidence (continued). proof of his opportunities for making the same, is inad- missible: State V. Abrams, 11 Or. 1G9. Experiments to furnish data for certain inferences must be based on circumstances like those developed in the case on trial: State v. Justus, 11 Or. 178. Experiments made by firing a gun near pasteboards to show powder-burns thereon, to show that deceased was ■ killed by a near gunshot wound, are inadmissible: Id. Whether a shot was fired near or at a distance, when not directly proved, must be proved by medical experts from an examination of the wound: Id. Experiments by non-professional witnesses, not approved as evidence: Id. Mode of examining intimate acquaintance as to insanity of defendant in a criminal case: State v. Murray, 11 Or. 413. Opinion of a witness, as to whether or not a piece of land is included in a tract described in a United States patent, is inadmissible: Johnson v. Knott, 13 Or. 308. 10. Character Evidence. Defendant in an action for damages for surgical malprac- tice cannot prove his reputation for skill as a surgeon: Williams v. Poppleton, 3 Or. 139. In criminal case, defendant may prove good character, and state cannot show particular acts in rebuttal: State V. Garrand, 5 Or. 156. Admissible whenever character of witness has been im- peached in any of the statutory methods: Glaze v. AVhitley, 5 Or. 164; contra, Sheppard v. Yocum and De Lashmutt, 10 Or. 402. Where witness has been impeached by inconsistent state- ments made by him, character evidence in his behalf is admissible in rebuttal; Id. Evidence of good character introduced by prisoner should be submitted to the jury, with the other facts and cir- cumstances of the case: State v. Garrand, 5 Or. 216. Party witness for herself cannot be impeached by show- ing particular acts of immoral conduct: Leverich v. Frank, 6 Or. 212. Her letter to a third person cannot be introduced, con- taining language indicating she was unchaste: Id. 262 Evidence. Evidence (continued). Particular facts called out on cross-examination of im- peaching witness, tending to show that the latter is not worthy of belief, may be considered by the jury on the question of the credibility of impeached witness: Steeples v. Xewton, 7 Or. 110. Good character of plaintiff's and defendant's families may be shown by plaintiff in an action for seduction: Parker V. Mouteith, 7 Or. 277. Proper mode of impeaching by inquiring into general reputation: Page v. Finley, 8 Or. 45; State v. Clark, 9 Or. 466. The question must be directed to the general reputation of the witness, and omitting the word "general" is fatal: Id. ' Defendant in action for money had and received, charged with fraud, cannot prove his good character: Ladd and Bush V. Sears, 9 Or. 244. General habits of sobriety cannot be proved to overcome proof of intoxication at time certain: Heneky v. Smith, 10 Or. 349. In malicious prosecution case, founded on an arrest of the plaintiff for larceny, evidence of bad reputation of the plaintiff for honesty and integrity may be proved in defense to rebut proof of want of probable;" cause, and in mitigation of damages: Gee v. Culver, 13 Or. 598. 11. Res GESTiE. Dying declarations, and those which are part of res gestae, are the only declarations admissible: Goodall v. State, 1 Or. 333. Consultation at time of alleged improi3er surgical treat- ment admissible as part of the res gestse: Williams v. Popplcton, 3 Or. 139. Declarations as res gestae must have been made at the time: State V. Glass, 5 Or. 73. To be contemporaneous, the declarations are not required to be precisely concurrent in time with the main fact: State V. Garrand, 5 Or. 216. The fact that complaint by prosecutrix in rape case was made immediately after the commission is admissible to corroborate her testimony, but the particulars of her statement cannot be given: State v. Tom, 8 Or. 177. EVTDENCB. 263 Evidence (continued). The declaration of a party in his favor, in civil or crim- inal cases, is admissible only as part of the res gestse: State V. Anderson, 10 Or. 448. Narrations of the occurrence immediately after injuries are received by ejectment from a railroad train, the de- fendant not being then present, are not part of the res gestx: Sullivan v. Oregon R'y & N. Co., 12 Or. 392. Record of a void judicial proceeding may be admissible as a private writing as part of the res gestx, and to show the inducement to the execution of a deed: Stinson v. Porter, 12 Or. 444. Insanity as a defense must be proven to the satisfaction of the jury by the defendant, upon whom the burden lies, except where the facts upon which it is based are part of the res gestx: McAllister v. Territory, 1 W. T. 360. 12. Declaeations and Admissions. Evidence of inconsistent declarations is admissible to im- peach witness, but is not evidence of the facts stated therein: State v. Fitzhugh, 2 Or. 227. Assessment roll or written statement furnished assessor is not admissible to prove the value of land sought to be condemned, or to show as an admission the value claimed by owner: Oregon Cascade R. R. Co. v. Baily, 3 Or. 164. Declarations of deceased, made to her physicians, are competent against the defendant in a case of man- slaughter by attempted abortion, to prove the fact of pregnancy: State v. Glass, 5 Or. 73. In action upon contract for support, admissions in affida- vit, made subsequent to the breach, and used in another forum, may be shown as evidence: Tippin v. Ward, 5 Or. 450. Declarations of ownership by one in actual possession of personalty are admissible after his decease to prove his title: Bartel v. Lope, 6 Or. 321. Method of impeaching by proof of inconsistent statements: State v. McDonald, 8 Or. 113; Sheppard v. Yocum and De Lashmutt, 10 Or. 402; State v. Abrams, 11 Or. 169; State V. Lurch, 12 Or. 104. On the trial of a case of rape on a child, where the court 264 Evidence. Evidence (continued). has excluded the child from testifying on account of her not possessing sufficient age and intelligence, her declarations as to the circumstances of the alleged rape, made at the time, cannot be received as evidence: State V. Tom, 8 Or. 117. Declarations of deceased person or persons out of the state are admissible, when they are relatives, as evidence of pedigree: Thompson v. Woolf, 8 Or. 454. But the person must be proved a relative otherwise than by his declarations alone: Id. Declarations of owner of real property, while in possession, impeaching her title, are admissible against her grantee, but not declarations in her favor except accompanying her possession and explanatory of her acts of owner- ship: Besser v. Joyce, 9 Or. 310. Her declarations that she had purchased of a particular person, and paid a definite sum out of a certain fund, are not admissible as evidence of such facts: Id. Declarations amounting to mere expressions of opinion of former owner do not overcome proof of common reputa- tion of boundary: Goddard v. Parker, 10 Or. 102. Evidence proving motive for falsehood in making declara- tions in disparagement of title, a-dmissible: Long and Spaur V. Lander, 10 Or. 175. The issue being as to the good faith of a sale, conversation between the parties relative thereto, at the time, is ad- missible: Bergman and Berry v. Twilight, 10 Or. 337. Declarations of party in his favor, in criminal or civil cases, admissible only as res gestos: State v. Anderson, 10 Or. 448. J When such declarations of the defendant are admissible in his behalf to negative the existence of a criminal de- sign: Id. Declarations of vendor after parting with his interest are not admissible to impeach the title of his vendee: KrewBon v. Purdom, 11 Or. 266. Declarations of hostility by witness, when proof of admis- sible: State V. Stewart, 11 Or. 52; S. C, 11 Or. 238; State V. Mackey, 12 Or. 154. Declarations of a party's agent are not admissible in his favor: Jones v. Kearns, 11 Or. 280, Evidence. 265 Evidence (continued). , Statement by an attorney to his client is not admissible in favor of the latter to prove a fact stated: White v. Rayburn, 11 Or. 450. Declarations of a party as to his physical condition, made while suffering from sickness or injury, are admissible in his favor: State v. Mackey, 12 Or. 154. Letter to defendant, written by daughter of plaintiff, in action for seduction, and defendant's oral reply, admis- • sible in behalf of plaintiff: Lee v. Cooley, 13 Or, 433. 13. Dying Declarations. The only declarations of deceased admissible are dying declarations, or those which are part of res gestae: Good- all v. State, 1 Or. 333. When dying declarations are admitted, it is competent to show deceased was a disbeliever in a future state of rewards and punishments: Id. No dying declaration admissible but those of the person for whose murder the indictment is found: State v. Fitzhugh, 2 Or. 227. Dying declarations must be concerning cause of death, and made with consciousness of the approach of death: State V. Garrand, 5 Or. 216.. Dying declarations are admissible for or against the accused in the discretion of the court: State v. Ah Lee, 7 Or. 237; State v. Saunders, 14 Or. 300; Thompson v. Territory, 1 W. T. 548. Their admissibility is not confined to cases where no other evidence is obtainable as to the killing: State v. Saunders, 14 Or. 300. Must be confined to facts, not conclusions; such that the deceased would have been competent to testify to if sworn as witness: Id. " He shot me down like a dog," is not such a conclusion as to be excluded under this rule: Id. Constitutional provision that accused shall have the opportunity to face witnesses does not affect admissi- bility of such evidence: Id. Objection to dying declarations, that deceased was an un- believer and an infidel, come too late after verdict found against the prisoner: Hartigan v. Territory, 1 W. T. 447. 26G Evidence. Evidence (continued). Where the record does not disclose the showing upon which dying declarations were admitted, the presump- tion on appeal is that it was sufficient: Thompson v. Territory, 1 W. T. 548. On objection to the admission of a declaration that " he firmly believed that T. struck him willfully and ma- liciously," the court struck out " willfully and mali- ciously," and admitted the evidence; held, the rul- ing was favorable to the accused, and no prejudice: Id. 14. Confessions. When a conversation is admissible as confession, what each pai'ty thereto said may be admitted: State v. -Taylor, 3 Or. 10. Admissions on advice of arresting officer, when may be regarded as evidence: State v. Leonard, 3 Or. 157. Common-law rule excluding confessions induced by in- fluence of hope is not altered by section 169 of the Criminal Code (sec. 1368, Hill's A. L.): State v. Wint- zingerode, 9 Or. 153. After one confession is obtained by promises, subsequent confession is not admissible, unless the facts show that the influence has ceased to operate: Id. Whether such influence has ceased to operate is a ques- tion for the trial court, and its decision will not be re- viewed unless bill of exceptions shows the discretion was abused: Id. Confessions of one of several confederates, made after the enterprise was afl'ected, bind only himself, and not his confederates: Sheppard v. Yocum and De Lashmutt, 10 Or. 402. As preliminary to proof of admissions by prisoner, the whole conversation need not be given in evidence: Yelm Jim v. Territory, 1 W. T. 63. Cross-examination aSbrds means of obtaining full state- ment: Id. 15. Repute. Reputation not admissible to prove dedication within memory of living persons: McEwan v. Portland, 1 Or. 300. Not admissible except to prove matters of public and gen- eral interest, and not a particular fact: Id. Evidence. 267 Evidence (continued). Reputation as to ownership of private property admissible in Oregon: Wilson v. Haddock, 5 Or. 480; Bartel v. Lope, 6 Or. 321. The opinion of the witness as to whom the common repute ascribes the ownership, not admissible: Id. Common repute, under the statute, is evidence of boun- dary: Goddard v. Parker, 10 Or. 102. Boundary proved by reputation is presumed in conform- ity with the original location, and not overcome l)y con- tradictory expressions of opinion of former owner: Id. IG. Perpetuation of Evidence. Granting of petition discretionary; notice to adverse party may be required: In the Matter of Carter, 3 Or. 293. Proceeding should not be used to ascertain what adverse witness will testify: Id. Amendment of section 805 of the Code (sec. 815, Hill's A. L.), concerning equity practice, it seems, leaves no provision for taking deposition of a witness in equity case, even de bene esse, unless reference has been made to find the facts, or the facts and the law: Marks & Co. V. Crow, 14 Or. 382. 17. Generally and Relevancy. Proof of a delivery of wheat in April, 1857, will prove allegation, " heretofore, to wit, about and previous to October 1, 1857 ": Jackson v. Sharif and Hill, 1 Or. 246. An uncertified tax list is not relevant in suit on sheriff's bond for not returning certified tax list: Fargo v. County Commissioners, 1 Or. 262. In action for agreed price, when the evidence as to whether that price was agreed upon is conflicting, evidence of the value of the property sold was ad- imtted as a circumstance tending to disprove the al- leged agreement: Brown v. Cahalin, 3 Or. 45. Proof of the state of accounts was admitted, as tending to contradict a claim of payment by a release of prior in- debtedness: Id. What land brought at sherifl''s sale is no proof of its value: Willamette Falls C. & L. Co. v. Kelly, 3 Or. 99. Consultations of surgeons in malpractice case, not admis- sible except as part of res gestx: Williams v. Poppleton, 3 Or. 139. 2G8 Evidence. Evidence (continued). Which of two recognized surgical systems may be best, not questioned in such case: Id. Value of coin in currency, or custom of banks to pay checks in coin, not admissible, in action to recover for gold coin loaned, to show value of the loan: Davis v. Mason, 3 Or. 154. Where pleadings admit an agreed price for labor, reason- able value not provable: Id. Where contract to pay at fixed rate was void for not be- ing in writing, reasonable value admissible: Id. In action to condemn land held by one corporation, evi- dence of the transactions of that corporation is not ad- missible to prove that the land is held by it to prevent ■ competition: Oregon Cascade R. R. Co. v. Baily, 3 Or. 164. The articles of incorporation, and the general incorpora- tion law, is the evidence of the ix)wers of a corporation: Id. Quiet and exclusive possession, evidence of a title until a better is shown: Oregon Cascade R. R. Co. v. Oregon Steam Nav. Co., 3 Or. 178. Proof of value of land condemned at the time of the com- mencement of the action determines the amount to be paid therefor: Or. & Cal. R. R. Co. v. Bark>w, 3 Or. 311. In action for work and labor, defense that plaintiff did not work diligently is not admissible unless pleaded: Albee v. Albee, 3 Or. 321. The whole judgment roll is admissible to dispute jurisdic- tion recited in a part thereof; administrator's sale may be impeached by the record: Gilmorc v. Taylor, 5 Or. 89. In divorce suit, preponderance of proof sufficient, though the charge is of crime: Smith v. Smith, 5 Or. 188. Evidence of attempts to escape, admissible against pris- oner, and tends to prove guilt: State v. Garrand, 5 Or. 216. Proof of personal indignities, and general demeanor of defendant toward plaintiff, may be sutJicicnt to prove breach of contract to support an infirm and aged per- son: Tippin v. Ward, 5 Or. 450. Lease for two years in writing being alleged, proof of ver- bal lease for two years is not admissible as establishing Evidence. 269 Evidence (continued). lease for one year good under statute of frauds: Noyes V. Stauff, 5 Or. 455. Deposition taken in different proceeding between other parties to prove marriage, not admissible under section 819 of the Code (sec. 829, Hill's A. L.): Murray v. Mur- ray, G Or. 26. Proof of cohabitation and recognition as man and wife in society, prima facie proof of marriage in civil suits: Id. On the question of value of town lots, proof of nearness to city, cost of grading streets adjoining, etc., is relevant: Arrigoni v. Johnson, 6 Or. 167. What proof of damage is admissible in action for obstruct- ing stream and overflowing plaintiff's land: Marsh v. Trullinger, 6 Or. 356. Nature and weight of evidence sufficient to set aside a will for fraud and undue influence: Greenwood v. Cline, 7 Or. 17. Promissory note is prima facie evidence of a settlement: Matasce v. Hughes, 7 Or. 39. Historical works are not admissible to prove the unwritten law of a foreign country: State v. Moy Looke, 7 Or. 54. Evidence of general conduct toward an infant, as proving or rebutting malice, is admissible in action for assault and battery: Smith v. Harris, 7 Or. 76. Flight of defendant when charged with the offense may be shown by the plaintiff in an action for seduction: Parker v. Monteith, 7 Or. 277. Proof that the seduction was accomplished under promise of marriage is admissible: Id. Uncorroberated testimony of accomplice will not warrant conviction: State v. Odell, 8 Or. 30. That yiisoner was in the same town at the time is not sufficient corroboration: Id. Evidence, on an appeal from an order staying execution, cannot be introduced in the Supreme Court for the tirst time: Bentley v. Jones, 8 Or. 47. To prove value of horses killed on railroad, purchase price not material: Holstein v. 0. & C. R. li. Co., 8 Or. 163. Proof of former accident in same place not admissible in action for injury to passenger: Davis v. 0. »<' C. R. R. Co., 8 Or. 172. 270 Evidence. Evidence (continued). Slight evidence, tending to prove some of the issues, is admissible: Elkins v. Parrish, 8 Or. 330. Court has discretion to admit evidence on promise of attorney to make the same material by other evidence to be introduced; Bennett v. Stephens, 8 Or. 444. After order of interpleader has been made, evidence affect- ing the good faith of the plaintiff is not admissible: Fahie v. Lindsay, 8 Or. 474. Return of nulla bona is but one kind of proof of insolvency, and it may be proved otherwise: Hodges and Wilson v. Silver Hill Mining Co., 9 Or. 200. In action on bond, testimony of sureties that they do not recollect having signed is of little weight as against ■positive evidence: Howe v. Taylor, 9 Or. 288. General notoriety of the fact that a father would not be responsible for a son's debts is not evidence to charge with notice a person dealing with them: Smith v. Cox, 9 Or. 475. Evidence that purchaser was shown boundaries of land, and knew that they were not as described in deed, ad- missible on question of fraud: Id. Evidence reviewed and held not sufficient to charge notice of unrecorded deed: Boehreinger v. Creighton, 10 Or. 42. Proof that maker, at the time of signing a note, was able to pay the note, is not admissible to raise presumption that he signed the same for the accommodation of an in- dorser: Whitlock and Manciet v. Eigne, 10 Or. 166. In action for assault and battery, proof of conveyance by defendant of his property after action begun, under suspicious circumstances, may be submitted to the jury as an implied admission of guilt: Heneky v. Smith, 10 Or. 348. In action to condemn right of way, evidence of an en- deavor to agree as to compensation is a prerequisite to suit: 0. R. & N. Co. v. Oregon Real Estate Co., 10 Or. 444. When it becomes material, the identity and condition of a hat, not produced, may be shown by oral evidence: Heneky v. Smith, 10 Or. 349; State v. Abrams, 11 Or. 169. Evidence. 271 Evidence (continued). When the defendant in a criminal case offers evidence that he was intoxicated at the time of the commission of the act, the prosecution may show in rebuttal what the defendant did and said when seen by witness a few minutes before, as facts from which the jury may form an opinion: State v. Abrams, 11 Or. 1G9. Experiments by firing a gun at pasteboards to prove, by .powder-burns, distance of shot when fired, arc not ad- missible: State V. Justus, 11 Or. 178. Board painted with Chinese characters admitted as evi- dence for the jury, with other evidence as to whether it contained rules adopted by the Joss-house Company: Chung Yow V. Hop Chong, 11 Or. 220. Agent may testify in what capacity and for whom he was acting as agent for one or another: Bennett v. N. P. Ex. Co., 12 Or. 49. Marriage may be proved by eye-witnesses or the parties, in crim. con. cases: Jacobsen v. Siddal, 12 Or. 280. In an action for damages for ejectment from a train, plain- tiff must prove, not who was owner, but who was using the train: Sullivan v. Oregon R'y & N. Co., 12 Or. 392. Evidence is admissible in an action on an account stated, to show that certain matters were not included in the settlement: Normandin v. Gratton, 12 Or. 505. Evidence that accused obtained a gun at a distant place, and was seen at different places carrying it towards the place of the murder, is not rebutted by proof that he was seen at one place on the way without the gun: State V. O'Neil, 13 Or. 183. In a criminal action, testimony that has any possible bear- ing upon the defendant's case should not be excluded: State V. Mah Jim, 13 Or. 235. Co-tenant, who has redeemed the property from tax sale, and who claims to retain possession until reimbursed, may be shown to have been in receipt of all the profits during the time: Minter v. Durham, 13 Or. 470. Party relying on a decree as a part of his proof of title should introduce the same in chief, that opposite party may have opportunity to meet it: Walker v. Goldsmith, 14 Or. 125. Evidence that officers of city improved a sidewalk several 272 Evidence. Evidence (continued). times, may go to the jury on the question whether the locus was a municipal thoroughfare: Sheridan v. City of Salem, 14 Or. 328. Held, there was no evidence tending to show a state of war among Indians in any wise affecting this case: Yelm Jim v. Territory, 1 W. T. G3. The circumstance of a person voting in another state, at a presidential election, would not establish his resi- dence out of the territory, against his sworn statement of residence and intention of returning: Clarke v. Ter- ritory, 1 W. T. 68. In mitigation of damages claimed for continued impris- onment, it may be shown that t,he person imprisoned refused to accept bail: Ferguson v. Tobey, 1 W. T. 275. A mere blow inflicted upon the defendant, nothing ap- pearing to show its severity or other physical conse- quence, is not evidence from which insanity can be inferred: McAllister v. Territory, 1 W. T. 360. Written testimony is that which, after it is written out, the witness assents to as that to which he makes oath, and his assent should be expressed by his signature: Coleman v. Yesler, 1 W. T. 591; Seattle & W. W. R. R. Co. v. Ah How, 2 W. T. 36. Difference between an exhibit and the testimony of a wit- ness, whether oral or written, pointed out: Doctor Jack v. Territory, 2 W. T. 101. Examination of Witnesses. See Witnesses. Exceptions. See Appeal and Error; Jury and Jury Trial. Executions, and Proceedings Supplemental. See Mortgages; Sheriffs; Taxation. 1. What Subject to Execution. 2. Form and Issuing. 3. Control of the Court. 4. The Levy. 5. The Return. 6. The Sale. 7. Confirmation. 8. Sheriff's Deed, 9. Redemption. 10. Rights and Liabilities of Officers. 11. Validity and Rights of Parties. 12. Proceedings Supplemental. Executions. 273 Executions (continued). 1. What Subject to Execution. Equitable title in land cannot be sold on execution: Smith V. Ingles, 2 Or. 43; Bloomfield v. Humason, 11 Or. 229. Exemption must be claimed at the time; what is a waiver: White V. Thompson, 3 Or. 115. Homestead entry commuted to pre-emption, not liable for debts incurred before patent: Clark v. Bayley, 5 Or.. 343. Land of married woman, married before adoption of con- stitution, is exempt from execution for husband's debts under section 5, article 15, of the constitution: Rugh V. Ottenheimer, G Or. 231. A revenue cutter of the United States is not subject to process from the state courts: Goldsmith v. The- Revenue Cutter, 6 Or. 250. A pledgor's interest in property pledged, with a limited power of sale for the protection of the pledgee, may be levied upon and sold under execution against the pledgor: Williams v. Gallick, 11 Or. 337. Mortgagee of chattel mortgage has no right in the property subject to execution: Knowles v. Herbert, 11 Or. 54;. S. C, 11 Or. 240. The property of a corporation in the hands of a stock- holder, not having been declared a dividend, is subject, to execution on a judgment against the corporation: Hughes V. Oregonian R'y Co., 11 Or. 158. A watch of moderate value may be exempt as wearing; apparel, when all claimed is not of value beyond the statutory limit: Stewart v. McClung, 12 Or. 431. The burden is on the debtor claiming exemption to prove afiixmatively all facts to establish it: Id. Where one buys chattels in his own name, but as agent for another, the property is not subject to execution on a judgment against the former: Sires v. Newton, 1 W. T. 356. 2. Form and Issuing. An -execution is a writ within section 1 of the Practice Act of 1851: Stephens v. Dennison and Norton, 1 Or. 19. May command sheriff to make "due return thereof," in- stead of to return it "within thirty days" under said act: Id. Ok. Dig.— 18 274 Executions. Executions (continued). In issuing execution on lapsed judgment, court may in- quire into validity of the judgment: Hunsaker v. Coffin, 2 Or. 107. Filing transcript, on appeal from Justice's Court, not suf- ficient docketing in the Circuit Court to warrant issu- ing an execution from the latter court: Chapman v. Raleigh, 3 Or. 34. Execution to sell the premises may issue on judgment to enforce mechanic's lien: Kendall v. McFarland, 4 Or. 292. Cannot be issued for additional costs after satisfaction of judgment of record: Snipes v. Beezley, 5 Or. 420. Mere levy on personal property, which is subsequently ■ returned, does not prevent issuing another execution: Wright V. Young, 6 Or. 87. Direction to levy on "real estate, goods, and chattels" in writ is informal, but writ is not void: Id. On proceeding to obtain leave to issue writ on dormant judgment, what questions considered: McCracken v. Swartz, 5 Or. 62; Ladd v. Higley, 5 Or. 296; Strong v. Barnhart, 5 Or. 496; S. C, 6 Or. 93. May issue on judgment by confession: Allen v. Norton, 6 Or. 344. Is the proper method of enforcing lien of state for costs of criminal cases: State v. Munds, 7 Or. 80. Not necessary to issue on judgment where property is attached, in order to sustain bill in equity to set aside sale under a fraudulent decree: Bremer & Co. v. Fleck- enstein and Mayer, 9 Or. 266. Not necessary to issue, where the judgment is a lien, be- fore proceeding in equity to set aside a fraudulent con- veyance or encumbrance: Multnomah St. R'y Co. v. Harris, 13 Or. 198. 3. Control of the Court. Under power granted the court under section 100 of the Civil Code, to relieve party, no necessity for resorting to equity to stay execution: Wells, Fargo, & Co. v. Wall, 1 Or. 295. Every court has power to control its own process to pre- vent its abuse: Provost v. Millard, 3 Or. 370. The court refused to regall an execution, or require party Executions. 275 Executions (continued). to satisfy of record a decree in his favor, rendered by a court in another district, which it is claimed has been satisfied in fact: Id. On fiHng an undertaking for stay of proceedings on appeal, the Circuit Court may recall an execution issued: Bentley v. Jones, 8 Or. 47. 4. The Levy. Levy on personalty subsequently returned is not a satis- faction, and another execution may issue: Wright v. Young, 6 Or. 87. On personalty in the hands of third person who has a lien, or who has not, is trespass: Spaulding v. Ken- nedy, 6 Or. 208. Officer cannot justify under such attempted levy, in action for the recovery of the property: Id. Levy is unnecessary before sale on execution upon a de- cree of foreclosure: Bank of British Columbia v. Page, 7 Or. 454. Action on his bond, and not mandamus, is the proper remedy when the sheriff refuses or neglects to levy: Habersham v. Sears, 11 Or. 431. Sheriff has no authority to decide that his levy is subor- dinate to another placed on the property by a constable, Schneider v. Sears, 13 Or. 69. 5. The Return. " In default of personal property," sufficient statement in return after levy and sale of real estate: Griswold v. Stoughton, 2 Or. 61. Return of nulla bona is but one kind of proof of insol- vency, and the fact may be proved otherwise: Hodges and Wilson v. Silver Hill Mining Co., 9 Or. 200. 6. The Sale. Statutory requirement that known lots or parcels be sold separately is directory: Griswold v. Stoughton, 2 Or. 61; Dolph V. Barney, 5 Or. 192; Bank of British Colum- bia V. Page, 7 Or. 454. Proof of sale is properly made by introducing the judg- ment roll as prehminary evidence: Gilmore v. Taylor, 5 Or. 89. Except in case of abuse, the sheriff's discretion to sell town lots separately or together ought not to be ques- tioned: Bank of British Columbia v. Page, 7 Or. 454. 276 Executions. Executions (continued). Irregularities in stating incorrectly in the execution the amount or names are treated as having been amended, on collateral attack: Jones v. Dove, 7 Or. 467. Kesale after appeal and modification of decree must con- form to subdivisions 3 and 4 of section 293 of the Code (sec. 296, Hill's A. L.): Trullinger v. Kofoed, 8 Or. 436. Sale may be enjoined in equity when it will cloud the title to realty: Cox v. Smith and Forward, 10 Or. 418; Wilhelm v. Woodcock, 11 Or. 518. 7. Confirmation. Judgment debtor, or his representatives after his death, are the parties to object to confirmation: Miller v. Bank . of British Columbia, 2 Or. 291. , Judgment creditor, not a party to judgment, cannot object to confirmation: Miller v. Oregon City Mfg. Co.; 3 Or. 24. Confirmation is a final adjudication touching regularity of the proceedings, and conclusive as to all persons in any other suit or proceeding: Matthews v. Eddy, 4 Or. 225; Dolph v. Barney, 5 Or. 1S2; McRae v. Daviner, 8 Or. 63. . Confirmation of all sales on execution, by the Circuit Court upon submission of the deed, was necessary and proper practice prior to June 1, 1863: Wright v. Young, 6 Or. 87. Omission to indorse approval of the court on the deed does not render it void: Id. Order of confirmation is conclusive as to regularity of proceedings after execution and before confirmation: Id. Order of confirmation is appealable: Dell v. Estes and Carter, 10 Or. 359. Objections must bo filed within the time allowed by stat- ute, and cannot be filed afterwards without leave ob- tained from the court: Id. Description in order of confirmation held insufficient to identify the land: Swift v. Mulkey, 14 Or. 59. 8. Sheriff's Deed. Recitals in, and irregularities in; effect of confirmation: Mathews v. Eddy, 1 Or. 225. "Where all steps have been regularly taken, recitals are prima facie evidence, and deed is evidence of title: Dolph v. Barney, 5 Or. 192. Executions. 277 Executions (continued). May be executed by the sheriff in oflBce when deed is due, after time for redemption: Moore v. Willamette T. & L. Co., 7 Or. 359. Deed to land held by fee-simple conditional title with lim- itation over by executory devise, made on sheriff's sale before the happening of the condition, conveys fee- siniplo title: Rowland v. Warren, 10 Or. 12'J. 9. Redemption. After time for redemption is past, judgment debtor cannot upon mere motion have sale set aside: Griswold v. Stoughton, 2 Or. 61. In case of foreclosure of a number of mortgage liens: Chavener v. Wood, 2 Or. 182. On redemption, effect of sale is terminated, and premises must be restored to their original condition: Cartwright v. Savage, 5 Or. 397. Judgment debtor, on redeeming, may recover value of crop growing at time of sale, and harvested by purchaser while in possession: Id. Who may redeem on foreclosure of mortgage, and on what terms: Chavener v. Wood, 2 Or. 182; Atkinson v. Mor- rissy, 3 Or. 832; Abraham v. Chenoweth, 9 Or. 348; Sellwood V. Gray and De Lashmutt, 11 Or. 534; Parker V. Dacres, 2 W. T. 439. Mortgagee not made a party need not redeem, but may foreclose as if no sale was made: Besser v. Hawthorn, 3 Or. 129; S. C, 3 Or. 512. Redemption, in the sense of the statute, is not a common- law but an equity term: Abraham v. Chenoweth, 9 Or. 348. Th^ght of the purchaser in possession before redemption, is an equitable estate: Id. After time for redemption expires, by the sheriff's deed, his equitable estate becomes a legal estate by merger: Id. Redemption from tax sale differs in that respect from re- demption from judicial sale: Id. On foreclosure of wife's mortgage after her death, husband failing to redeem, he has no right by curtesy as against a person redeeming, who has also acquired the interest of tiie wife's children in the property: Id. Right to redeem applies only to sales on execution, not to 278 Executions. Executions (continued). foreclosure sales in Washington Territory: Parker v. Dacres, 2 W. T. 439. 10. Rights and Liabilities of Officers. Officer protected by process, valid on its face; not so jus- tice or party improperly issuing: White v. Thompson, 3 Or. 115. Sheriff liable for failure to levy where judgment creditor is injured: Moore v. Floyd, 4 Or. 101. Where sheriff fails to make return or to levy, it is pre- sumed that plaintiff in execution has lost his debt, and burden is on the sheriff to show otherwise: Id. Sheriff must obey writ in due form, and cannot refuse to execute or return, and thus require the parties to de- termine the legality of the judgment: Richards v. Nye, 5 Or. 382. Sheriff is not bound, when he takes money conditionally from debtor, to allow him longer than until the end of the time for return, to test the legality of execution: Id. Verdict of a jury under section 284 of the Code (sec. 287, Hill's A. L.) operates as full indemnity to sheriff: Rem- dall V. Swackhamer, 8 Or. 502; Capital Lumbering Co. V. Hall, 9 Or. 93; Hexter v. Schneider, 14 Or. 184. When verdict is against the claimant, he cannot afterward maintain action of replevin against the sheriff for the goods: Capital Lumbering Co. v. Hall, 9 Or. 93. Clerk is not entitled to collect commissions on moneys not actually coming to his hands: Jackson v. Siglin, 10 Or. 93. Action on bond, and not mandamus, is proper remedy for failure of officer to levy: Habersham v. Scars, 11 Or. 431. The essential allegations, in a complaint against a sheriff for neglect to pay over money realized on executions, are the existence of the judgment, the issuing of the writ, the realization of the. money, and the neglect to pay it over: Schneider v. Sears, 13 Or. 69. Sheriff having levied on personalty as the property of one person, when sued in conversion by another, may defend by showing the title is in a third party: Krewson & Co. V. Purdom, 13 Or. 563. Verdict of jury, called by officer to try the title to goods taken on execution, while protecting the sheriff, does Executions. '^"' the purchaser on execution sale: Hexter v. Schneider, Sheriff'is not entitled to commission on execution sales, where judgment creditor bids in the property, and no money passes to the sheriff: Coleman v. Ross, 14 Or. 349. 11. Validity and Rights of Parties. Judgment creditor purchasing is chargeable with all ir- regularities, but a stranger purchasing is charged with substantive defects only: Stephens v. Dennison and Nor- Execution will not be set aside because writ directed sher- iff to make "due return thereof" instead of to return the same within thirty days: Id. Validity of judgment will not be questioned on mere mo- tion after sale: Griswold v. Stoughton, 2 Or bl. Objection that two or more parcels were sold m gross is not considered on such motion: Id. . Plaintiff in execution purchasing extinguishes the specific lien of his mortgage foreclosed: Chavener v. Wood, 2 Pu^chaL with knowledge of equitable rights in another will be postponed to those rights: Stannis v. Nicholson, 2 Or. 332. , , - Sale on execution upon judgment without foreclosure of mortgage securing the debt valid: Mathews v. Eddy, 4 Or 225 Purchaser entitled to enter, use, and occupy, for purposes such as premises can put to for time he is in: Cart- wjdght V. Savage, 5 Or. 397. But^i redemption the purchaser will be required to repay to the judgment debtor the value of a growing crop har- vested while he was in possession: Id. Where two executions issued simultaneously on same iudgment, and but one was executed, proceeding was irregular, but waived by not having taken advantage by motion to quash: Wright v. Young, 6 Or. 87 Executions issued without authority are void, but issued with authority which is erroneously pursued voidable, and on collateral attack irregularities are ignored: Jones V. Dove, 7 Or. 467. 280 Executions. Executions (continued). Purcliaser depends on the judgment, levy, and deed; other questions are between the parties to the judgment and the sheriff: McRae v. Daviner, 8 Or. 63. Former purchaser is to be first repaid on applying the moneys realized from resale: Trullingerv. Kofoed, 8 Or. 436. Purchaser, under judgment against a married woman upon a note signed by her as surety, takes good title where the record does not show she was a married woman: Farris v. Hayes, 9 Or. 81. Equity will not set aside sale void on its face for want of notice to defendant of the action, where there is a remedy by ejectment: Id. Purchaser is entitled to immediate possession, unless there be a tenant holding over: Bank of British Columbia v. Harlow and Page, 9 Or. 338. Undertaking on appeal from confirmation, providing for payment of value of the use if the order is affirmed, is not provided for by law, and does not bind sureties: Id. Such undertaking gives appellant no right of possession: Id. Action for money had and received lies to recover money paid by purchaser at execution sale, where there is no judgment upon which execution issues: Hoxter v. Pop- pleton, 9 Or. 461. The ordinary rule of caveat emptor does not apply in such case: Id. Purchaser without notice on execution against a grantor of land, who by reason of defect in conveyance has the legal title thereto, has superior rights to the grantee: Bloonifield v. Ilumason, 11 Or. 229. Rule of caveat emptor applies; good faith of purchaser avails nothing against tlie true owner wlio is not a party to the process: Hoxter v. Sclineider, 14 Or. 184. Claimant of property sold on execution is not concluded by verdict of sheriff''s jury adverse to him from bring- ing replevin against purchaser: Id. Chattels of principal, purchased by agent in his own name, cannot be sold on execution against the agent: Sires v. Newton, 1 W. T. 356. False Imprisonment. 281 Executions (continued). 12. Proceedings Sitplemental. Are legal, pot equitable; foreclosure cannot be enforced therein: Knowles v. Herbert, 11 Or. 54; S. C, 11 Or. 240. Against garnishee are proceedings at law, and not in equity, and notice of appeal must specify errors sought to be reviewed: Williams v. Gallick, 11 Or. 337. Right to supplemental proceedings under statute could not be cut off or summarily taken away by force of a new statute without allowing reasonable time for lim- itation: Murne v. Schwabacher Bros. rokers. False Imprisonment. See Malicious Prosecution. Assault with dangerous weapon is felony; private person, though not seeing the offense committed, may arrest the offender: Lander v. Miles, 3 Or. 35. 282 False Imprisonment. False Imprisonment (continued). Preponderance of evidence of guilt of accused sufficient to justify arrest: Id. Firing a gun on accused to secure his arrest justifiable only when necessary: Id. False Pretenses. Defendant accused of obtaining money on forged notes may prove in defense that the signatures were signed by him with authority: State v. Lurch, 12 Or. 95. A note so signed is not a false writing: Id. False Representations. See Fraud and Deceit. Family Expenses. See Husband and Wife. Federal Relations. See Admiralty; Constitutional Law; Courts; Jurisdiction; Public Lands; State. Fee-tail. Estates in fee-tail are abolished; estates of inheritance are subject to a general power of alienation: Rowland V. Warren, 10 Or. 129. Fees. See Assessors; Attorneys; Bills and Notes; Compen- sation; Costs and Disbursements; County Clerks; Sheriffs. Fees of officers may be paid in currency, and they have no right to demand coin: Coffin v. Coulson, 2 Or. 205. Law requiring witness to demand his fees at the term when he is subpoenaed is not unconstitutional: Lanna- han V. Multnomah County, 3 Or. 187. Act of October 21, 1864, relating to fees in counties east of the Cascade Mountains, is an original act, and not amendatory: Bird v. Wasco County, 3 Or. 282. Legislature may control unearned fees, except where pro- hibited by constitution: Portland v. Besser, 10 Or. 242. Percentage of county treasurer for receiving school funds, allowed by a statute not referred to in a re-enactment of the law fixing the salary of the county treasurer, may still be retained by him for such duties: Chatfield v. Washington "County, 3 Or. 318. Shcriff''s fees and mileage, construction and application of statute: llowe v. Douglas County, 3 Or. 488; Crossen v. Earhart, 8 Or. 370. Indictment for charging unlawful fees by county clerk: State V. Packard, 4 Or. 157. Fees and salary of police judge of city of Portland: Port- Fees. 28S Fees (continued). land V. Denny, 5 Or. IGO; Adams v. Multnomah County, 6 Or. IIG. County assessors are not entitled to mileage: Taylor v. Umatilla County, 6 Or. 401. Fees of district attorney in foreclosure suits by school land commissioners: Claim of Ison, 6 Or. 465; Hazard's Appeal, 9 Or. 36G. Fees of district attorney in actions on official undertak- ings: Claim of Ison, 6 Or. 469. No fee fixed by statute for coroner for summoning jury: Cook V. Multnomah County, 8 Or. 170. The County Court has discretionary power to fix such fee in each case, and the exercise of the power is not sub- ject to writ of review: Id. Sheriff is not entitled to mileage in transporting convicts to the penitentiary: Crossen v. Earhart, 8 Or. 370, Act to provide compensation of clerks and sheriffs in certain counties held unconstitutional as a local law: Manning v. Klippel, 9 Or. 367. Statutes giving costs must be strictly construed: Jackson v. Siglin, 10 Or. 93. Promise to pay fees not authorized by law is void and cannot be enforced: Id. County clerk is not entitled to commission on money bid on sale on execution by the judgment creditor and not actually coming to the hands of the clerk: Id. Sheriff and tax collector not distinct ofiBces, and sheriff not entitled to additional compensation as tax collector: Lane v. Coos County, 10 Or. 123. Chief of police is not entitled to fees as constable when acting as such in state cases: Portland v. Besser, 10 Or. 242. Keeper's fees, for care of attached property, are chargeable upon the assets by the sheriff, and are not to be taxed as costs in the action: Schneider v. Sears, 13 Or. 69. Disbursements and sheriff's fees in a trial of the right to property before a sheriff are not taxable as costs in the original action: Id. Witness in criminal case is entitled to but two dollars per day and mileage, though subpoenaed out of the county: Sargent v. Umatilla County, 13 Or. 4-i2. 284 Fees. Fees (continued). Section 785 of the Civil Code (sec. 795, Hill's A. L.), pro- viding for double fees to witnesses in certain cases, does not apply to criminal cases: Id. Statute requiring witnesses residing within two miles of place of trial in criminal cases to attend without re- ceiving fees is not unconstitutional as requiring partic- ular services without compensation: Daly v. Multnomah County, 14 Or. 20. Sheriff is not entitled to commission on execution sale, where judgment creditor bids in the property, and no money passes to the sheriff: Coleman v. Ross, 14 Or. 349. Felony. See Criminal Law; Pardon. Feme Covert. See Husband and Wife. Fences. See Boundaries. Neither railroad or adjoining owner is required by law to fence the line between them: Oregon Central R. R. Co. V. Wait, 3 Or. 91. Common-law rule that owner is required to keep his cattle within his own close, under penalty of answering in damages for injuries, not in force in Oregon: Campbell V. Bridwell, 5 Or. 311. Complaint in action for trespass by cattle, must show a statutory fence maintained by plaintiff: Id. But in absence of statute, owner of land need not main- tain fence to sustain such action: French v. Cresswell, 13 Or. 418. Statutory requirement to fence against certain specified kinds of stock, in Umatilla County, does not apply to sheep which are not mentioned: Id. Ferries. See Highways. Franchise does not belong of right to owner of soil, but he is entitled to preference if he applies before license is granted: Ciant v. Drew, 1 Or. 35; Mills v. Learn, 2 Or. 215. Cannot be established for one year; license must be per- petual: Cason v. Stone, 1 Or. 39. County commissioners are final judges of necessity for: Id. Appeals from commissioners' decisions to District Court: Carothers v. Wheeler, 1 Or. 194. Before a county had a "court-house" where court was FEBIUE3. 285 Ferries (continued). regularly held, what Bufliciciit posting of notices: Drew V. Gant, 1 Or. 197. What is sufficient bond under order granting license: Id. Circumstances of payment of license fee in particular case, held sufficient: Id. Charier fixing rates the same " as other ferries are or may hereafter be," rates may be changed by law: Stephens and Frush v. Powell, 1 Or. 283. Riparian owner has not the exclusive right to a ferry: Mills V. Learn, 2 Or. 215. Ferry landings in the line of a continuous highway are a part thereof: Id.; Price v. Knott, 8 Or. 438; Montgom- ery V. Multnomah R'y Co., 11 Or. 344. The right and ownership of ferry, with such landings, confers a right to land on the banks: Id. The riparian owner, having had due notice and waived his rights, cannot object to another having the ferry: Id. License granted to another than riparian owner is a per- sonal trust, and expires with death of grantee: Knott v. Frush, 2 Or. 237. Reservation in sale of franchise, for free ferriage for grantee and his family, construed: Stephens v. Knott, 2 Or. 304, overruling Stephens v. Knott, 3 Or. 50. Person employed by grantee, hauling lumber, included in family right to free ferriage: Id. Ferry license under act of 1854 is a franchise limited to a term of years: Beckley v. Learn, 3 Or. 470. Owner of lands may assert his right to preference, after expiration of a license: Id.; Beckley v. Learn, 3 Or. 544. PartrrcT taking ferry and franchise in his own name, pur- chased for the firm wit
  • oration which is a etockholder holding* property of Garnishment. 299 Gurnishment (oontinued). another corporation, not dividends, may be garnished on judgment against the latter company: Hughes v. Or. R'y Co., 11 Or. 158. Attaching creditors, as against garnishee, acquire the rights of the debtor, and no more: Baker and Smith v. Eglin, 11 Or. 333. One for a valuable consideration agreeing to pay certain debts of another cannot be garnished at suit of other creditors of the latter: Id. Proceedings supplemental to execution against garnishee are proceedings at law, and notice of appeal must al- lege errors sought to be reviewed on appeal: Williams V. Gallick, 11 Or. 337. The order to appear and answer under oath must be served personally, and not on an attorney, but appear- ance of the garnishee at the hearing is equivalent to personal service: Carter, Rice, & Co. v. Koshland, 12 Or. 492. Delive-y by the officer of a copy of the writ to the gar- nishee, and a notice not specifying the identical prop- erty, but all debts, property, etc., in general language, is a valid garnishment: Id. Upon taking a judgment in the attachment suit ordering sale of the property attached, pursuant to act of 1878 (sec. 157, Hill's A. L.), there can be no further subse- quent judgment against the garnishee: Id. See S. C, 13 Or. G15. After judgment in the attachment suit, garnishee pro- ceedings are merely a means of discovery: Id. Property in the hands of an executor in his representative capacity is in custody of law, and is not subject to gar- nishment: Harrington v. La Rocque, 13 Or. 344. But after order of distribution has been made, it is not in custody of law, and may be garnished: Id. After entering judgment against the debtor, if garnishee proceedings are pending, and afterward are fully de- termined against the garnishee, a judgment against the garnishee may be entered: Carter, Rice, & Co. v. Koshland, 13 Or. G15. Such judgment shall be for the value of the property to the extent of the judgment and costs: Id. 300 Garnishment. Garnisliment (continued). The form of such judgment not being directly provided for by statute, the courts have power under the Code to adopt a suitable mode: Id. Property garnished is in custody of the law, and cannot be disposed of by the garnishee: Id. Examination of garnishee is not an adversary proceeding, but is simply a means of discovery: Coombs v. Davis, 2 W. T. 466. Judge, in such proceedings, cannot order garnishee to turn over property, unless he admits he has property of defendant in his possession: Id. If garnishee claim a lien, he can only be ordered to turn over the property on his lien be,ing first satisfied: Id. But scvible, otherwise with certain classes of property, making provision, however, for satisfaction of gar- nishee's lien: Id. Gold Coin. See Money. Governor. See Pardon. Power of appointment to vacant office: Cline and New- some V. Greenwood and Smith, 10 Or. 230. Governor having resigned, secretary of state discharging the duties of the office as provided by the constitution, and also the duties of secretary, is entitled to the salary as governor: Chadwick v. Earhart, 11 Or. 389. In such case, on the secretary's term of office expiring, he is still acting governor, and entitled to the salary aa such: Id. Grain. See Warehousemen. Grand Jury. See Jury and Jury Trial. Grants. See Deeds; Public Lands. Guaranty. See Bills and Notes. When and how the effect of a guaranty must be averred: Goodwin v. Barnhart, 1 Or. 215. Undertaking of guarantors to guarantee the performance of a contract by another, and to indemnify against loss, construed: Ilildebrand v. Bloodsworth, 12 Or. 75. The consideration for contract need not be a benefit to guarantor: Id. Answer charging fraud and misrepresentation and want of consideration as a defense to a suit on a contract of guaranty, held not to -state facts sufficient to constitute a defense in law: Marx v. Schwartz, 14 Or. 177. Guardian and Ward. 301 Guaranty (continued). Instruction that if the debt was the debt of the defendant, then the plaintiffs are not entitled to recover in such suit, was held to be outside of the issues, and erroneous: Id. Creditor collecting, upon execution against the principal debtor, part of the debt guaranteed, such amount col- lected is pro tanto satisfaction of the guaranty: Id. Contract of guaranty renders the principal and guarantor severally liable, and they cannot be joined in one suit: Tyler v.' T. of T. A. & P. U., 14 Or. 485. Guardian and Ward. Guardian may mortgage minor's estate under subdivision 6, section 869, of the Code (sec. 895, Hill's A. L.): Trutch v. Bunnell, 5 Or. 504; S. C, contra, 11 Or. 58. In foreclosure, no defense that guardian's name as such was signed to the note and mortgage, and not the minor's: Id. Minors not adversary parties to guardian in County Court in obtaining leave to mortgage: Id. Guardian ad litem can confess judgment for infant: Eng- lish V. Savage, 5 Or. 518. Minor, on arriving at age, receiving proceeds from guar- dian's sale on partition is presumed to ratify the sale, and is estopped to deny its validity: Hatcher v. Briggs, 6 Or. 31; Brazee v. Schofield, 2 W. T. 209. County Court in the matter of appointing guardians for minors and lunatics is a court of general and superior jurisdiction: Monastes v. Catlin, 6 Or. 119. Such jurisdiction is probate jurisdiction within article 7, section 12, of the constitution: Id. GencMrl guardian has power to appear and answer for his ward, and his appearance is a waiver of irregularity in service of summons: Ankeny v. Blackiston, 7 Or. 407. Mother of a bastard is its guardian, and is bound to main- tain it: Nine v. Starr, 8 Or. 49. Ward, or those claiming under him, cannot, by statute, in contesting the validity of sale of real property, col- laterally attack the appointment of the guardian: Walker v. Goldsmith, 14 Or. 125. Where the question as to guardian's sale arises collater- ally, and the pleadings raise no question of jurisdiction, 302 Guardian and Ward. Guardian and Ward (continued). and the proceedings are regular on their face, sale must be sustained: Id. Guardian's petition for sale of land, which states one suf- ficient ground, will sustain jurisdiction to order the sale, though it also states another insufficient ground: Id. Proof of posting notice of sale dated prior to date of post- ing, clerical error presumed, where the record other- wise shows the fact: Id. Notice of sale need not be published the four weeks im- mediately preceding the sale; sufficient if it be pub- lished four weeks successively prior to the sale: Id. Fraudulent sale can be attacked only by direct allega- tions in the pleadings: Id. Acquiescence by minor for unreasonable time after reach- ing his majority is a waiver of his right to attack for fraud: Id. Partition proceedings, though beyond the jurisdiction of a probate court, are binding upon adults and minors ap- pearing by guardian under supervision and sanction of the Probate Court: Brazee v. Schofield, 2 W. T. 209. If guardian acts under judicial authority, though irregu- larly, his acts are valid on collateral attack: Id. Ward is deemed to have ratified void sale of his property, if after attaining full age he does not within reasonable time disaffirm it: Id. Guardian's sale will not be held void on collateral attack, though the description was indefinite and notice was published three instead of four weeks, where the record sufficiently shows that the Probate Court was applied to upon a definite matter within its jurisdiction: Id. Ward having, after coming of age, acquiesced by silence for years, during which improvements were made, can- not attack such sale: Id. Habeas Corpus. Jurisdiction is generally original, but in a sense appellate, in Circuit Court: Norman v. Zieber, 3 Or. 197. Jurisdiction of committing magistrate may be put in issue on return of writ: Id. Rehearing of the evidence not a matter of course, where prisoner was held to bail: Fleming v. Bills, 3 Or. 286. Informality in commitment will not justify discharge, Heirs. 303 Habeas Corpus (continued). where petitioner does not produce record, though in his power to do so: Id. Auxiliary writ of review being granted, court refused to rehear the evidence given before the committing magis- trate: Id. An order of commitment of court of competent jurisdic- tion not void for error of fact or law: Id. Questions properly triable arise on the return, and the traverse thereto: Merriman v. Morgan, 7 Or. 68. Irregularities not apparent in the process, unless juris- dictional, will not be inquired into: Id. The return is a pleading, and is to be construed and have effect as in an action: Pomeroy v. Lappeus, 9 Or. 865. Jurisdiction is acquired by the service of the writ: Id. Admitting the prisoner to bail after service of the writ does not oust jurisdiction, and an answer or return al- leging such fact is demurrable: Id. Trial of a cause by a court of competent jurisdiction is not reviewable on writ of habeas corpus: Ex parte Williams, 1 W. T. 240. Handwriting. See Evidence, Hearsay. See Evidence. Heirs. See Administration; Legacies; Public Lands; Wills. Take title of realty at once on death of ancestor; rights of County Court over: Hanner v. Silver, 2 Or. 336. Heirs of settler under donation law, who dies before prov- ing, take by purchase, not by descent: Delay v. Chap- man, 3 Or. 459. The liability of the estate acquired, to administration and debts of deceased: Id. Infa,at heir necessary party under act of 1855 on sale of realty of decedent: Fiske v. Kellogg, 3 Or. 503. Heirs of unnaturalized person dying before patent under donation law inherit the claim: Blakesly v. Caywood, 4 Or. 279. Take no title by the patent to donation claim, conveyed by man and wife before patent: Dolph v. Barney, 5 Or. 191. Are necessary parties defendant in foreclosure suit against executors: Renshaw v. Taylor, 7 Or. 315. Tender by heir to pay claim against estate; eflfect on al- 304 Heirs. Heirs (continued). lowance of order to sell real property of estate to pay such claim: Weill v. Clark's Estate, 9 Or. 387. Highways. See Dedication; Bridges; Ferries. The recorded plat of a highway is not evidence of the ex- istence of the road, but of its location only: Naylor v. Beeks, 1 Or. 216. Such plat necessary under act of 1854, before opening of the road, unless the road is laid upon a government survey: Id. Certiorari lies to bring up proceedings of County Court in laying out highway: Thompson v. Multnomah County, 2 Or. 34. Petition of twelve householders and legal notice are juris- dictional in laying out: Id.; Johns v. Marion County, 4 Or. 46. Person who signed petition is not " disinterested " house- holder, and therefore incompetent to act as a viewer: Id. Ferry landings in the line of highway are a part of the highway: Mills v. Learn, 2 Or. 215; Montgomery v. Multnomah R'y Co., 11 Or. 344; S. C, 12 Or. 25. County liable for negligence of road supervisor: McCalla V. Multnomah County, 3 Or. 424. Petition and notice necessary to give County Court juris- diction to lay out: Johns v. Marion County, 14 Or. 46. Petition must describe terminal points with certainty: Id. Record of County Court must show jurisdiction affirm- atively: State V. Officer, 4 Or. 180. " Not sufficient to recite posting of notice to satisfaction of of court; must state the facts: Id. Statute authorizing establishment of private road over land of another without consent, void: Witham v. Os- burn, 4 Or. 318. A person who repairs a county bridge or highway without legal authority has no right to compensation: Spring- field Mining Co. v. Lane County, 5 Or. 265. Power of county to lay out a highway over road owned by private company: C. & G. Road Co. v. Douglas County, 5 Or. 280. Corporation cannot appropriate highway established by dedication, without first attempting to agree with the Highways. 305 Highways (continued). County Court in relation thereto: Douglas County Road Co. V. Abraham, 5 Or. 318. A slight change in the thread of the road will not defeat the rights of the public: Id. Paramount control of streets in city and country roads is in legislature: East Portland v. ^Multnomah County, 6 Or. 62; Multnomah County v. Shker, 10 Or. 65. Legislature may transfer its control of streets and high- ways in a city to the municipality: Id. Order denying petition to lay out road does not bar subse- quent proceedings to establish a road over same route: Kamer v. Clatsop Co., 6 Or. 238. Unmarried men may be householders within road lawi Id. Value of the land and damages or benefit by reason of the opening of the road, the measure of damages: Terwil- liger V. Multnomah Co., 6 Or. 295; Putnam v. Doug- las Co., 6 Or. 328. The value of the roadway, extra fences, inconveniences, or advantage, are to be estimated: Putnam v. Douglas Co., 6 Or. 328. The advantages may exceed or equal the damage, whea the jury will find against the claimant: Id. Taking private property for public use for roads, without awarding damages before deducting benefits, is con- stitutional: Id. Damages may be obtained by person specially injured by- toll-gate obstructing the road: Milarkey v. Foster, 6 Or. 378. What complaint in such action is sufficient on demurrer: Id. Oral'^vidence is admissible to show the number of build- ings and inhabitants at a place to prove it a town within the statute, prohibiting toll-gates within the limits of a town: Id. Act of Congress for the construction of the Dalles Military Road; duty of company building road: Schultz v. Mili- tary Road Co., 7 Or. 259. Building the road of less width than prescribed will ren- der company liable to person injured: Id. Such person can recover, as carrier of United States mails^ Or. Dig.— 20 306 Highways. Highways (continued). for tolls paid on other roads, when compelled on account of want of bridges to travel such other road: Id. Mail-carriers, and those in their employ, are exempt from tolls on the Dalles Military Road: Id. Private corporation may locate its road part of the way over a county road by making agreement, under the statute, with County Court: D. C. R. Co. v. C. & G. R. Co., 8 Or. 102. When such company has made such agreement, it may so locate its road, though another company, without such agreement, has already appropriated the county road: Id. Road supervisor is sole judge of the necessity for taking . materials from lands adjoining- or near the road, for repairs: Kendall v. Post, 8 Or. 141. Equity will not interfere, where he does not oppress, in the discharge of such duties: Id. Party from whose land such material is taken has his remedy by applying to the County Court to assess the damage: Id. The statute, section 29, chapter 50, Miscellaneous Laws (sec. 4093, Hill's A. L.), affording such remedy, is not unconstitutional for assessing without jury trial: Id. Private corporation, locating its road in part- over a high- way, acquires no exclusive right thereto: C. & G. Road Co. V. Stephenson, 8 Or. 263. The part of the highway so located need not be resurveyed as a part of the private road: Id. By locating on such highAvay, the corporation does not acquire the right to exclude another corporation, subse- quently formed, from appropriating and using the same in like manner: Id. Act providing for construction of a wagon road, held not a local or special law obnoxious to article 4, section 23, subdivision 7, of the constitution: Allen v. Ilirsch, 8 Or. 412. Notice of application for laying out a highway must be signed by the petitioners: Minard v. Douglas Co., 9 Or. 206; King v. Benton County, 10 Or. 512. Proof of posting notices should show the places where posted: Id. Highways. 307 Higliways (continued). County Court has no power to confer the right on a pri- vate corporation to establish a toll-gate and collect toil on a public highway, at a point not embraced in the line of its corporate road: State v. Douglas County Road Co., 10 Or. 185. The private corporation, obtaining agreement with the County Court to use such highway, must, on accepting, actually appropriate and establish their road thereon: Id. Petitioners not signing notice have no standing in court, and their petition confers no jurisdiction: King v. Ben- ton County, 10 Or. 512. Statute providing for proceedings to be done at "next ensuing " terra of County Court means the regular not special appointed term : Tompkins, Clackamas County, 11 Or. 364. Term having been irregularly appointed, and road estab- lished thereat, the court cannot, by nunc pro tunc order, validate the proceedings at subsequent term: Id. Indictment for obstructing, when termini must be alleged and proved: State v. Hume, 12 Or. 133. When equity will restrain obstructing highway: Luhrs v. Sturtevant, 10 Or. 170; Smith v. Gardner, 12 Or. 221; Walts V. Foster, 12 Or. 247. In action for injury sustained in falling from an unguarded elevated plank road, plaintiff need not plead or prove want of contributory negligence: Grant v. Baker, 12 Or. 329. Merely transferring, by the legislature, the control over a county road to a city does not make it a street: Heiple V. East Portland, 13 Or. 97. Road is a public highway; street is a road in a city or village: Id. Use and improvement of a road within city limits of a city is not sufficient to prove acquiescence of abutting owners to the use thereof as a street, under plea of stat- ute of limitations: Id. Legislature has authority to establish road from Olympia to Monticello, and require counties through which it passes to pay the expense in proportion to the miles in each: Lewis County v. II ays and Kennedy, 1 W. T. 109. 308 Highways. Highways (continued). The fact that such road is called territorial instead of county road is not material: Id. Under act of 1867, no appeal lies from commissioners in opening or laying out road except on the question of amount of damages: King County v. Neely, 1 W. T. 241. Homesteads. See Public Lands. Homicide. See Criminal Law; Evidence. Instructions on self-defense held erroneous: Goodall v. State, 1 Or. 333. Killing, being admitted by prisoner, does not devolve on him the necessity of proving justification: State v. Whit- ney, 7 Or. 386. If one defendant strikes the blow, the other being present assisting him, both may be found guilty of manslaugh- ter under same indictment: State v. Fitzhugh, 2 Or. 227. Malice presumed from voluntary use of weapon intended for taking life: State v. Bertrand, 3 Or. 61. After proof of use of such weapon, excuse and justification is defense, and burden is on defendant: State v. Con- nally, 3 Or. 69. And it is not ground for acquittal that evidence fails to show whether or not justifiable: Id. Burden of proof on the defendant to show justification by preponderance of proof: Id. May use necessary force to prevent forcible entry into de- fendant's house, but not follow and shoot: Id. Self-defense does not justify following and killing after danger has ceased: Id. Reasonable doubt in homicide case: State v. Glass, 5 Or. 73; State v. Ah Lee, 7 Or. 237; State v. Anderson, 10 Or. 448; State v. Abrams, 11 Or. 169; Smith v. United States, 1 W. T. 262; Leonard v. Territory, 2 W. T. 381. The form of indictment referred to in section 71 of the Criminal Code (sec. 1270, Hill's A. L.) is sufficient: State V. Dodson, 4 Or. 64; Smith v. Smith, 5 Or. 186; State V. Wintzingerode, 9 Or. 153. Evidence of threats of deceased as proving killing justifia- ble: Id. Evidence of previous attempt of deceased to commit abor- tion on herself, unless contributing to her death, not Homicide. 309 Homicide (continued). admissible in manslaughter by attempt to comm.it abor- tion: State V. Glass, 5 Or. 73. Where the wound is the immediate cause of the death, no defense that deceased might have recovered if greater skill were used in his treatment: State v. Garrand, 5 Or. 156. On trial for murder, if there is no conflict of evidence on the point, court may instruct the jury that there is no evidence reducing the crime to manslaughter: State v. Garrand, 5 Or. 21G; State v. Whitney, 7 Or. 386; Smith V. United States, 1 W. T. 262. Murder in the first degree defined; what deliberation necessary to constitute: State v. Ah Lee, 8 Or. 214; State V. Anderson, 10 Or. 448; State v. Abrams, 11 Or. 169; State V. Murray, 11 Or. 413; Leonard v. Territory, 2 W. T. 381. Homicide in committing robbery; the purpose to kill is conclusively presumed: State v. Brown, 7 Or. 186. In such case the indictment need not allege that the kill- ing was done purposely: Id. Indictment in the form set forth in the appendix to the Code sufficient: Id. The killing is murder in the first degree if done at any time before the taking and carrying away of the goods is completed: Id. The defendant was not prejudiced by an erroneous in- struction to the effect that if the killing took place after the robbery was completed, the defendant should be acquitted : Id. One shooting at a person with intent to kill him, and missing him and killing another, is as guilty as though "he had killed the person at whom he fired: State v. Johnson, 7 Or. 210; State v. Murray, 11 Or. 413. Where the evidence of premeditation is contiicting, it is error to instruct that there is no evidence to reduce the crime from murder in the first degree: State v. Ah Lee, 7 Or. 237. Admission of the killing does not admit that it was mur- der; instructions assuming such to be the case are erro- neous: State V. Whitney, 7 Or. 386; State v. Grant, 7 Or, 414; State v. Mackey, 12 Or. 154. 310 Homicide. Homicide (continued). Where the facts do not raise a conclusive presumption of murder in the first degree, the degree of the guilt must be left to the jury; instruction held erroneous: State V. Grant, 7 Or. 414. View of premises by the jury; no error to fail to provide for presence of defendant or his counsel when not re- quested: State V. Ah Lee, 8 Or. 214. Direct proof of deliberation and premeditation unneces- sary; may be inferred: State v. Anderson, 10 Or. 448. General indictment stating facts constituting crime of murder in first degree will sustain verdict of guilty in either degree, and the verdict must state the degree: State V. Wintzingerode, 9 Or. 153. Evidence that defendant shortly before the killing pro- cured two guns, which were afterwards found secreted under his bed, admissible: Id. That he had money the day after the killing, of the kind owned by deceased, and which defendant did not have before, admissible: Id. Threats of accused as proving malice: State v. Powers, 10 Or. 145. General language in a charge, used by way of illustration and afterwards limited and applied to case at bar, is not error: State v. Anderson, 10 Or. 448. Court having given definition of reasonable doubt need not give another at request of defendant: Id. Deliberation and intention may be presumed from the circumstances: Id. Capital punishment is not contrary to article 1, section 15, of the constitution: Id. "By then and there unlawfully and feloniously shooting him," held surplusage in indictment for first degree: State V. Abrams, 11 Or. 169. Deliberate use of deadly weapon defined: Id. When negligence causing death is manslaughter:' State v. Justus, 11 Or. 178. Insanity as a defense to homicide: State v. Murray, 11 Or. 413; McAllister v. Territory, 1 W. T. 360. Deliberately and with premeditation lying in wait, and shooting to kill one person, and missing him but killing another, is murder in the first degree: State v. Murray, 11 Or. 413. Homicide. 311 Homicide (continued). Admission of the fact of killing by gunshot docs not ad- rait that it was done by defendant; instruction assum- ing the fact as proved is error: State v. Mackey, 12 Or. 154. Proof that accused obtained a gun at a distant point, and was seen at several places carrying it toward the place of murder, is not rebutted by proof that at one place ■ on the way he was seen without it: State v. O'Neil, 13 Or. 183. Where life is involved, latitude in admission of evidence in defense should be given: Id.; State v. Mah Jim, 13 Or. 285. Indictment charging murder at common law is sufficient to sustain a verdict of murder in the first degree under the statutes: Leschi v. Territory, 1 W. T. 13. The peculiar circumstances distinguishing murder in the first degree under the statute need not be set out in the indictment: Id. The jury are to determine from the evidence the degree: Id. Verdict of " guilty as charged, and that he suffer death," is sufficient verdict for murder in the first degree: Id. Arraignment cannot be waived on a charge of murder: Elick V. Territory. 1 W. T. 136. Consent of counsel to enter plea of "not guilty" will not dispense with arraignment, and prisoner must person- ally enter his plea, unless shown to be incapacitated: Id. One unacquainted with English language is entitled to have interpreter, who shall make known the charge, j!£ceive his plea, and as trial proceeds, interpret the evi- dence to him: Id. Homicide on Indian reservation is within federal jurisdic- tion, and the contmon law governs: Shapoonmash v. United States, 1 W. T. 188. In capital cases, no presumption in favor of the regularity - of the proceedings: Id. Murder committed on tide-water, within the boundaries of a county, is within the admiralty jurisdiction of the United States: Smith v. United States, 1 W. T. 262. Territorial courts would have concurrent jurisdiction of such offense: Id. 312 Homicide. Hcrnicide (continued). Evidence of dangerous character of the deceased not ad- missible where there is no evidence of assault or threat- ened assault on his part: Id. Judge withheld instructions on manslaughter, telling the jury that if, having deliberated, they wanted instruc- tions on that subject, he would give them; held, no error: Id. There being no evidence to reduce the crime to man- slaughter, it is not error to refuse to instruct on that subject: Id. Whether the deceased was or was not an American citi- zen, or whether or not the vessel was American, is im- material upon the question of the jurisdiction of the United States admiralty courts: Id., Jurisdiction of territorial courts over person of one ac- cused of murder on San Juan Island during the joint occupancy under convention between the United States and Great Britain: Watts v. United States, 1 W. T. 288; Watts v. Territory, 1 W. T. 409. Not error to instruct that where a third person interferes between two coml^atants, without reasonable notice, to prevent one of the latter from killing the other, and is killed, such killing is not murder in the first degree: McAllister v. Territory, 1 W. T. 360. Not error to instruct in such case that the crime is no more than manslaughter: Id. Omission of the word " feloniously " is not material if the indictment follows the statute: Watts v. Territory, 1 W. T. 409. Inr>tructions as to appearances of danger that justify the taking of life approved : Id. Not necessary that the records show a copy of indict- ment was served on the prisoner: Lytic v. Territory, 1 W. T. 435; Leonard v. Territory, 2 W. T. 38L Not necessary where there is no evidence of self-defense, to qualify instructions so as to meet case of accident or self-defense: Doctor Jack v. Territory, 2 W. T. 101. Deliberate and premeditated malice must be charged directly of the killing, and applying the words to the assault and the shooting is not sufficient in the indict- ment: Leonard v. Territory, 2 W. T. 381. Husband and Wife. 313 Homicide (continued). Recital in the conclusion of the indictment of such words as applied to the killing, do not supply the omission to directly so charge: Id. Defendant, against whom the evidence is circumstantial, may show that at the time of the killing another person hostile to the deceased was in the neighborhood, and had threatened to kill deceased: Id. InBtructions as to duty of accused to disprove facts brought out against him, and inference to be drawn from his failure to do so if jury believe it Avas within his power to disprove them, held erroneous: Id. Form of indictment for murder in first degree given: Id. Horse Races. See Wagers. Householders. Signer of petition for highway is not a " disinterested " householder, and is incompetent to act as a viewer: Thon.pson v. Multnomah Co., 2 Or. 34. Petition of twelve householders and notice are jurisdic- tional in proceedings in the County Court to lay out a highway: Id.; Johns v. Marion Co., 4 Or. 46. Unmarried man may be householder under the road law: Karaer v. Clatsop Co., 6 Or. 238. In Washington Territory, husband and wife jointly con- stitute the head of the family, and wife, as well as hus- band, is householder: Rosencrantz v. Territory, 2 W. T. 207. Hurdy-gurdy Houses. House kept for public dancing simply is not a " hurdy- gurdy dance-house," within the statute: State v. Tilley, 9 Or. 125. Husband and Wife. See Curtesy; Deeds; Divorce; Dower; 'Estoppel; Fraud and Deceit; Fraudulent Conveyances; Marriage; Public Lands. 1. Relation and Status. 2. Actions and Suits. 2. Property Rights. 1. Relation and Status. Though receiving a part of the money from a foreclosure sale of her separate property, upon the husband's mort- gage thereon, in suit against the husband, the wife is deemed his agent merely, and is not estopped: Fahie v. Pressey, 2 Or. 23. 314 Husband and Wife. Husband and Wife (continued). Cannot contract with each other, notwithstanding article 15, section 5, of the constitution: Pittman v. Pittman, 4 Or. 298; Elfelt v. Hinch, 5 Or. 255. Voluntary conveyance by husband to wife presumed fraudulent as to existing creditors: Id. On marriage, debts owing the husband by the wife are canceled, and he becomes liable for such other debts of hers as are pressed upon him during coverture, but not for those not so pressed, though he received a for- tune by his wife: Gilmore v. Gilmore, 7 Or. 374. Married woman's note is not absolutely void, but the burden is on the party setting it up to show that it was made within her powers to contract: Wells v. Apple- gate, 10 Or. 519. In 1864, in Oregon, husband and wife could not contract with each other, except with reference to wife's separate property: Lawrence v. Lawrence, 14 Or. 77. Wife conducting business in her own name may employ husband, and such employment is not a fraud on hus- band's creditors, and does not subject her property to his debts: King v. Voos, 14 Or. 91. So, though husband's services be voluntary: Id. But such arrangement is to be regarded with suspicion: Id. Rights and status of married women at common law reviewed: Phelps v. Steamship City of Panama, 1 W. T. 518. Woman's right to contract for safe carriage of her person by common carrier is the same whether she be married or single: Id. Married women, residing with their husbands, are compe- tent grand jurors in Washington Territory: Rosen- crantz v. Territory, 2 W. T. 267; Schilling v. Territory, 2 W. T. 283; Hayes v. Territory, 2 W. T. 286. Chapter 183 of Code 1881 removed common-law disabil- ities of wife: Id. Under the statute, husband and wife are jointly the head of the family, and wife is householder as well as the husband: Id. Constitution of grand jury is not impaired by making married women members thereof: Id. Husband and Wife. 315 Husband and Wife (continued). 2. Actions and Suits. Title being in the wife, she is a necessary party to fore- closure suit: Fahie v. Pressey, 2 Or. 23. When wife is sued alone, how far coverture is to be pleaded in bar or abatement: Kennard v. Sax, 3 Or. 2G3. Specific performance of contract made by husband and wife to convey wife's land not granted during coverture: Frarey v. Wheeler, 4 Or. 190. But where party went into possession and improved, value of improvements are made a charge on land: Id. Divorced wife cannot sue at law against former husband on contract implied, arising during coverture: Pittman V. Pittman, 4 Or. 298. Husband and wife must be joined as defendants in suit concerning her property: Ilass v. Scdlak, 9 Or. 462. Wife is liable for goods furnished for family use, under act of 1878, though sold on husband's credit: Watkins v. Mason, 11 Or. 72; Phipps v. Kelly, 12 Or. 213. But complaint must allege that the goods were sold for family use, and the wife cannot be held liable in a simple action for goods sold and delivered, when they were sold on the order of the husband: Smith v. Sher- win, 11 Or. 269. Wife may be sued, jointly or separately, for goods sold for family use, and separate judgment rendered against her: Watkins v. Mason, 11 Or. 72; Phipps v. Kelly, 12 Or. 213. Equity jurisdiction over wife's separate property is not ousted by the act of 1878 (sec. 2874, Hill's A. L.), pro- viding for holding her personally liable in an action at law for family expenses: Phipps v. Kelly, 12 Or. 213. Right of husband to join with wife in libel in admiralty in rem, for injuries to her person received on ship: Phelps V. Steamship City of Panama, 1 W. T. 518. Wife attempting to foreclose a fraudulent mortgage on husband's property may be enjoined at suit of attaching creditor: Meacham Arms Co. v. Swarts, 2 W. T. 412. 3. Property Rights. Married woman is estopped by the recitals in her deed: Graham v. Meek, 1 Or. 325. 316 Husband and Wife. Husband and Wife (continued). Title being in wife, she is necessary part}' to foreclosure suit: Fahie v. Pressey, 2 Or. 23. Not estopped to claim, though silent during foreclosure of husband's mortgage thereon: Id. Is not estopped by husband's deed to claim after-acquired title in her: Carter v. Chapman, 2 Or. 93. May sell or exchange separate property, and the money or property received is separate property: Brummet v. Weaver, 2 Or. 168. Registration of separate property is not notice to stranger of any property not mentioned: Id. Property cannot be sold or exchanged, and consideration held under former registration: Id. Death of husband, or a divorce, operates as a revocation of registration: Id. The constitution article 15, section 5, changes the common law as to wife's separate property: Id. To charge separate estate for contract during coverture, debt must have been contracted for benefit of, or on the credit of, separate estate: Kennard v. Sax, 3 Or. 263. When separate estate is not registered as such, it is prima facie the property of husband : Elfelt v. Hinch, 5 Or. 255. Rights of husband and wife under donation law. See Public Lands. Property bought by husband with wife's money in his own name is held by him in trust for her: Linnville v. Smith, 6 Or. 202. Section 5, article 15, of the constitution, exempts from ex- ecution for husband's debts, lands of woman married before adoption of the constitution: Rugh v. Otten- heimer, 6 Or. 231. Mortgage of woman's separate property for husband's debts may be enforced: Moore v. Fuller, 6 Or. 272; Gray v. Holland, 9 Or. 512. To avoid such mortgage on the ground of fraud, she must show that the mortgagee participated: Id. Wife is entitled to own, hold, and control property earned by her after marriage, and husband cannot interfere with it: Atterberry v. Atterberry, 8 Or. 224. Wife residing out of the state may, by joining with her husband, execute a valid power of attorney to convey Husband axd Wipe. 317 Husband and Wife (continued). her property in the state: Moreland v. Brady, 8 Or. 303. Quitclaim by wife of dower, in husband's deed, does not estop her from claiming an existing or after-acquired fee-simple interest: Burston v. Jackson, 9 Or. 275. Husband's interest in wife's separate property does not ac- crue until her death, and it is no fraud on his creditors to join her in her deed of conveyance on sale by her: Besser v. Joyce, 9 Or. 310. Husband must be joined as defendant in suit to foreclose wife's mortgage: Hass v. Sedlak, 9 Or. 463. Wife, mortgaging her property for husband's debt, holds as surety in regard thereto: Gray v. Holland, 9 Or. 512. On marriage, at common law, wife's personalty, actually or constructively in her possession, becomes the prop- erty of husband, and so, also, the personalty which dur- ing coverture is reduced to his or her possession: Cressy V. Tatom, 9 Or. 541. Land purchased in Oregon, in name of husband, with money obtained by the wife during coverture while they were residing in another state, belongs to the husband: Id. In the absence of averment and proof, it is presumed that the common-law rule of property rights prevails in other states: Id. Equity jurisdiction over wife's separate property is not ousted by the act of 1878 (sec. 2874, Hill's A. L.), pro- viding for holding her personally liable in an action at law for family expense: Phipps v. Kelly, 12 Or. 213. There is no resulting trust proved in favor of the wife, where, under an oral agreement that the title should be _taken in the wife's name, the husband paid the pur- chase-money and for the improvements, and the family resided on the property: Lawrence v. Lawrence, 14 Or. 77. Where husband and wife sell their donation claim, and husband invests the proceeds of both his and the wife's , portion in other land, on which both reside for twenty years, husband holds an undivided half in trust for wife: Springer v. Young, 14 Or. 280. Neglect of wife during coverture to establish her right by Buit does not bar her claim : Id. 818 Impaneling Jury. Impaneling Jury. See Jury and Jury Trial. Impeachment. See Judgments and Decrees; Witnesses. Imprisonment. See Arrest; Commitment; Criminal Law; False Imprisonment; Habeas Corpus. Improvements. See Estoppel; Mortgages; Specific Per- formance. Indian Country. See Indians. Indians. Oregon is " Indian country " within the purview of acts of Congress: United States v. Tom, 1 Or. 26. Prohibition of sale, etc., of liquor to, in act of Congress of June 30, 1834, applicable to Oregon and Washing- ton Territory: Id.; Fowler v. United States, 1 W. T. 3. One who sells liquor to Indians may be punished under territorial act and act of Congress -for the same offense: State V. Coleman, 1 Or. 191. Indian agent may, under act of Congress, seize wagon and team engaged in transporting liquor through reserva- tion, though the person in possession is not the owner: Webb V. Nickerson, 11 Or. 382. Surrendering the property to the owner subsequently is not an admission that the seizure was wrongful: Id. In justifying under the seizure, it is necessary to allege that the person in possession was a white person or an Indian: Id. Washington Territory is Indian country within the mean- ing of the Indian intercourse act: Nesqually Mill Co. V. Taylor, 1 W. T. 1. Act of Congress of March 3, 1847, regarding trade with Indians, does not repeal the act of June 30, 1834, but the second section adds the penalty of imprisonment: Id. A fine under the act of 1834 can only be collected by suit: Id. No evidence of general war among the Indians, affecting the case: Yelm Jim v. Territory, 1 W. T. 63. Indian sustaining tribal relations is as capable of enter- ing into contract as any other alien, excepting execu- tory contracts for payment of money, or goods paid or furnished by the United States to any Indian tribe pur- suant to stipulation or treaty: Gho v. Julles, 1 W. T. 325. Injunctions. 319 Indians (continued). The right of Indian to contract draws after it liability to be sued: Id. Indictment. See Criminal Law. Individual Liability of Stockholders. See Corpora- tions. Indorsement. See Bills and Notes; Filing Papers. Infants. See Divorce; Guardian and Ward; Parent and Child; Statute of Limitations. Decree against infant by court having jurisdiction, with- out fraud, is as binding as against an adult: English V. Savage, 5 Or. 518. Doctrine of parol demurrer is not recognized in Oregon: Id. In action for assault and battery upon infant in the care of the defendant, his general conduct toward the infant is admissible to prove or rebut evidence of malice: Smith V. Harris, 7 Or. 76. Putative father of bastard not liable on his naked prom- ise to support: Nine v. Starr, 8 Or. 49. Mother of such child is the guardian, and is bound to maintain it: Id. Information. See Criminal Law; Quo Warranto. Infringement. See Trade-mark. Injunctions. Individual may have injunction against public nuisance when specially and irreparably injured: Parrish v, Stephens, 1 Or. 73. Dissolution acts as a technical breach of injunction bond: Stone V. Cason, 1 Or. 100. The power to grant an injunction will not be exercised where there is remedy at law, not unless plaintiff has "shown diligence: Wells, Fargo, & Co. v. Wall, 1 Or. 295. Discretionary, in enjoining the erection of party-wall in this case, and here denied: Burton v. MoflStt, 3 Or. 29. Where answer denies all equities in bill, injunction not granted: Wellman v. Parker, 3 Or. 253. Not the proper remedy to require inferior court to com- plete its record: State v. Church, 5 Or. 373. Not the proper remedy to test the validity of election de- termining location of county seat: McWhirter v. Brain- ard, 5 Or. 426. 320 Injunctions. Injunctions (continued). Not granted where the rights of the plaintiff are doubtful: Taylor v. Welch, 6 Or. 198; Ladd and Bush v. Ramsby, 10 Or. 207; Tongue v. Gaston, 10 Or. 328; Wattier v. Miller, 11 Or. 329. The threatened erection of wharves on the water front ad- jacent to plaintiff's land may be enjoined: Parker v. Taylor, 7 Or. 435. Not granted to restrain road supervisor from taking mate- rial for repairing roads froiu lands near by, in the ordi- nary discharge of his duties: Kendall v. Post, 8 Or. 141. Complaint must not only allege irreparable injury, but state the facts from which ic is inferred: Portland v. Baker, 8 Or. 356. Adjacent lot-owner may enjoin person threatening to grade down street and permanently injure his lot: Price v. Knott, 8 Or. 438. When equity will enjoin a threatened trespass: Weiss v. Jackson Co., 9 Or. 470; Wattier v. Miller, 11 Or. 329; Smith V. Gardner, 12 Or. 221; Walts v. Foster, 12 Or. 247. In the absence of malice and want of probable cause, a person injured by injunction must seek his remedy on the injunction bond: Ruble v. Coyote G. & S. M. Co., 10 Or. 39. Such person must seek his remedy at law, and not in equity, in any event: Id. Remedy may be had at law on the bond, though in terms joint, and the interest of the parties distinct: Id. Right of garnishee to enjoin, for defects in proceedings against the defendant: Ladd and Bush v. Ramsby, 10 Or. 207. Injunction not granted on alternative and doubtful aver- ments: Id. Injunction against overflow by dam not granted where plaintiff's right is doubtful: Tongue v. Gaston, 10 Or. 328. Does not lie at suit of road supervisor to prevent person from illegally collecting and appropriating road taxes: Pettyjohn v. Parmenter, 10 Or. 341. Granted to restrain judgment obtained by fraud against defendant having a good defenfe: Marsh v. Perrin, 10 Or. 364. Injunctions. 321 Injunctions (continued). Granted at the suit of a riparian owner to restrain unlaw- ful diversion of waters of Tualatin River: Shaw v. Oswego Iron Co., 10 Or. 371; Weiss v. Oregon Iron etc. Co., 13 Or. 496. Merits of an injunction suit in Circuit Court, to restrain enforcement of a decision of Supreme Court, may be inquired of by the latter court on mandamus: State v. Jacobs, 11 Or. 314. The issuing of the writ of mandamus is a conclusive de- termination of the invalidity of the injunction: Id. Injunction for infringement of trade-mark, when allowed: Duniway Pub. Co. v. Northwest Printing Co., 11 Or. 322. Owner of dam not entitled to injunction against one in possession of land overflowed thereby, who seeks to drain the land, without showing an easement in him- self to overflow such land: Wattier v. Miller, 11 Or. 329. Injunction may be granted to restrain sale on execution on a judgment when the result would cloud the title: Cox V. Smith and Forward, 10 Or. 4l8; Wilhelm v. Wood- cock, 11 Or. 518. Lies to restrain waste, threatened or being committed: Sheridan v. McMullen, 12 Or. 150. When emergency is pressing, on prima facie case shown, temporary injunction may be granted pending legal proceedings to determine the rights of the parties: Walts V. Foster, 12 Or. 247. To have collection of a tax, part of which is illegal, re- strained, the part that is legal must have been paid or tendered: Brown v. School Dist. No. 1, 12 Or. 345. Lies to restrain a resale of property for taxes by a city after power has been exhausted by a void assessment aiTd sale: Dowell v. Portland, 13 Or. 248. Tax-payer may maintain a suit to enjoin county ofiicers from expending money for fraudulent or illegal pur- poses: Carman v. Woodrufi", 10 Or. 133; \VMte v. Com- missioners, 13 Or. 317. What complaint in an action on an injunction bond must allege: Olds v. Cary, 13 Or. 362. When attorneys' fees in an injunction suit are recoverable as damages, in an action on the bond: Id. Ob. Dig.— 21 822 Injunctions. Injunctions (continued). Appeal and not injunction is the proper remedy to pre- vent enforcing an erroneous judgment for costs: Nick- lin V. Hobin, 13 Or. 406. Riparian owner is entitled to injunction to prevent diver- sion of a stream, although he is injured but slightly, and uses but little of the water: Weiss v. Or. Iron etc. Co., 13 Or. 496. Legislature cannot divert property from the use for which dedicated to the public; and any person interested is entitled to enjoin such diversion: P. & W. V. R. R. Co. V. Portland, 14 Or. 188. Injunction will be refused, and party remanded to his action at law, where it appears that the trespass com- mitted is discontinued, and damages is the object of the suit: Ewing v. Rourke, 14 Or. 514. • Courts will protect possessory rights in public lands be- fore patent, by injunction against irreparable injury by waste: Colwell v.' Smith, 1 W. T. 92. Appeal does not lie from order granting or refusing tem- porary injunction: N. P. R. R. Co. v. W. F. & Co., 2 W. T. 303. Attaching creditor is entitled to injunction to restrain wife from foreclosing fraudulent chattel mortgage on her husband's chattels: Meacham Arms Co. v. Swarts, 2 W. T. 412. Innkeepers. Lien of, for unpaid charges, covers property of guest, or of another put in his possession by the guest: Cook v, Kane, 13 Or. 482. Such lien attaches to property of third person in the hands of guest as bailee, coming to the innkeeper by virtue of the innkeeping relation without notice of the true owner- ship: Id. Piano of third person, received by guest in his own name, and by his request put in possession of the innkeeper as the property of the guest, is covered by innkeepers' lien: Id. Insanity. See Fraud and Deceit. Deed of insane person is void, and may be impeached when offered to prove title in ejectment: Farley v. Parker, 6 Or. 105. Insolvency. 323 Insanity (continued). Opinion of intimate acquaintance admissible on the ques- tion of sanity, though he does not state in express words that he is an intimate acquaintance: Id. Not presumed where the testator's mahidy was in its nature occasional or temporary, that he was insane at the time of making his will: Heirs of Clark v. Ellis, 9 Or. 128. Delirium in an aged, infirm person distinguished from insanity: Id. Insanity as a defense to crime: State v. Murray, 11 Or. 413; McAllister v. Territory, 1 W. T. 360. If it appear that the accused could distinguish between right and wrong as to the particular act, that he knew it was wrong and would subject him to punishment, the defense will fail: Id. Must be proved beyond a reasonable doubt in Oregon, as a defense, that at the time the accused labored under diseased state of mind so excessive as to overwhelm reason, conscience, and judgment: Id. As a matter of independent defense, insanity must be proved to the satisfaction of the jury, unless the facts on which it is based are part of the res gestx: McAllister V. Territory, 1 W. T. 360. A mere blow inflicted on the defendant, nothing appear^ ing to show its severity or other physical consequence, is not evidence from which insanity may be inferred: Id. Insolvency. See Assignment for Benefit of Creditors. Where corporation is shown to be insolvent, a judgment against it and return of nulla bona are not necessary before suit against stockholders: Hodges and Wilson V. Silver Hill Mining Co., 9 Or. 200. Return of nulla bona is but one kind of proof of insolvency, ami it may be proved otherwise: Id. Discharge in bankruptcy, of one who has previously con- cealed a part of his property, does not preclude creditor, not a party, from pursuing the property: Besser v Joyce, 9 Or. 310. Resident creditor cannot collaterally attack discharge of debtor, under Territorial Insolvent Act", for fraud, es- pecially when it is not shown that he has no knowledge of the fraud at the time of the discharge: Rosenthal v Schneider, 2 W. T. 144. 824 Instructions to Jury. Instructions to Jury. See Criminal Law; Jury and Jury Trial. Insurance. Warranty in insurance defined; representations distin- guished: Buford V. N. Y. Life Ins. Co., 5 Or. 334. Warranties must be pleaded, and are conditions precedent by the assured, and the burden is on him to prove: Id. Representations, if false, are to be pleaded and proved by the insurer: Id. The court construes the contract, whether of warranty or representation, and should not leave the question to the jury: Id. The truth or falsity of the answers of assured in the appli- cation, and not whether such answers were material and warranties, the question for the jury: Id. What is "doing insurance business" under statute of Washington Territory, by agent of foreign corporation: Hacheny and Beno v. Leary, 12 Or. 40. Taking of note by a resident agent in Washington Terri- tory, for an installment of premiums due a foreign com- pany which has not complied with the statute, is doing insurance business in Washington Territory: Id. Such note is void and cannot be enforced: Id. Interest. May be allowed on the amount of a meclianic's lien: Willamette Falls etc. Co. v. Riley, 1 Or. 183. Not allowed on mutual accounts until balanced and set- tlement is had: Catlin v. Knott, 2 Or. 321. Where new law alters rate, interest recoverable under old law to date of new, then under new law: Stark v. Olney, 3 Or. 88. Note calling for three per cent per month, valid when made, enforced according to its terms: Besser v. Haw- thorne, 3 Or. 129. Compounding interest under act of 1854: Murray v. Oli- ver, 3 Or. 539. Interest not allowed to executor or his heirs on setting aside a conveyance of land belonging to the estate and bought in by the executor through an agent: Lay ton v. , Ilogue, 5 Or. 93. It is error to allow interest in excess of the legal rate in a judgment: Breemer & Co. v. Fleckenstein and Mayer, Interpleadee. 325 Interest (continued). 9 Or. 266; Roeder, Peabody, & Co. v. Brown, 1 \V. T. 112. Note given for payment of interest upon interest already due is valid: Hathaway v. Sewall, 11 Or. 66. State is not entitled to interest upon recovery from a county of a balance of unpaid taxes: State v. Multno- mah County, 13 Or. 287. Residuary legatee not chargeable with, after final settle- ment, on note previously given the executor for funds belonging to the estate: Leahy v. Cardwell, 14 Or. 171. Judgment on a note cannot bear greater interest than six per cent per annum, though the note provided for three per cent per month: Roeder, Peabody, & Co. v. Brown, 1 W. T. 112. One seeking to recover a larger than the legal rate must make certain that his contract in that respect is clear and unmistakable: Hazard v. Maxon, 1 W. T. 584. Court being unable to interpret an ambiguous provision in contract for greater than legal rate, rejected the in- terest clause as repugnant: Id. Not allowed on open account, unless stipulated for: Bax- ter v. Waite, 2 W. T. 228. When it is admitted in the pleadings that plaintiff is en- titled to recover on part of an open demand sued on, he is entitled to interest on such amount from the com- mencement of the action: Breemer v. Burgess 2 W. T. 290. Payment and acceptance of interest on a promissory note relieves it from statute of limitations: Koslowski v. Yesler, 2 W. T. 407. Interpleader. Aaeignee need not intervene in an attachment against the property assigned to him for the benefit of creditors, to move for its dissolution, as it is ipse facto dissolved by the assignment: Tichenfir v. Coggins, 8 Or. 270. The right to interplead or to intervene under the Code discussed: Id. Defendant in an action by husband and wife on note due the wife, being garnished by husband's creditors claim- ing the note to be his, may file bill of interpleader: Fahie v. Lindsay, 8 Or. 474. 326 Interpleader. Interpleader (continued). Evidence to prove collusion of plaintifiF and some of the defendants is not admissible after the order allowing interpleader has been made: Id. No order of interpleader necessary to enable defendant, in mortgage foreclosure suit, to file answer to the new matter in answer of co-defendants claiming adversely: Ladd and Tilton v. Mason, 10 Or. 308. Interpreter. Witness may translate document written in a foreign lan- guage, though not sworn as interpreter: Krewson & Co. V. Purdom, 13 Or. 563. In the trial of one unacquainted with the English lan- guage, a sworn interpreter should make known the charge, and the plea be entered by the same means, and the evidence during the trial be made known to the de- fendant: Elick V. Territory, 1 W. T. 136. Intervention. See Interpleader. Jailer. Sheriff may appoint, and is responsible for jailer's acts, but the county is not liable for his compensation: Crossen V. Wasco County, 6 Or. 215. Jeopardy. Sale of liquor to Indians may be punished for the same offense by territorial law, and also act of Congress: Ore- gon V. Coleman, 1 Or. 191. Conviction of disturbing the peace before city recorder, no bar to prosecution for assault and battery in Circuit Court: State v. Sly, 4 Or. 277. Conviction of taking saddle and bridle, bar to charge of taking a horse at same time and place, the property of the same person: State v. McCormack, 8 Or. 236. Test is not whether defendant has been tried for same act, but same offense: State v. Stewart, 11 Or. 52; S. C, 11 Or. 238. Conviction of assault and battery no bar to prosecution for kidnaping: Id. Joinder of Actions. See Pleading. Joinder of Parties. See Parties; Joint and Several Liar- bility. Joint and Several Liability. Consideration, good as to one joint obligor, is good as to the others, ajid cannot be severed: Iloxie v. Ilodgcs, 1 Or. 251. Joint and Several Liability. 327 Joint and Several Liability (continued). Effect in this state of judgment of another state against joint debtors, upon the party appearing in the action wherein tlie judgment was rendered: Swift v. Stark, 2 Or. 97. Such judgment is prima facie evidence of the indebtedness of the joint debtors not served or appearing: Id. Payment by one joint debtor of part of debt revives the liability of all the debtors: Partlow v. Singer, 2 Or. 307. Persons jointly liable on a note by its terms must be sued jointly, though the fact be that they are jointly and severally liable: Kamm v. Harker, 3 Or. 208. Liability of one joint maker where the other alters note after same is signed: Wills v. Wilson, 3 Or. 308. Entry of judgment against one defendant served, proper where obligation is joint and several: Simpson v. Pra- ther, 5 Or. 86. Release of one joint debtor on a joint and several promis- sory note releases the co-debtors: Crawford v. Roberts, 8 Or. 324. On joint and several contract, under the Code, judgment may be rendered against some, leaving the action to proceed against the others: Sears v. McGrew, 10 Or. 48. A covenant with persons jointly and severally liable on a bond, to indemnify them, will follow the bond, and be held joint and several also: Hughes v. Oregon R'y and Nav. Co., 11 Or. 437. Sheriff and attaching creditors are not liable jointly for co:iversion in taking money from person of prisoner and levying thereon under several attachments: Dahms v. Sears, 13 Or. 47. In action on an alleged joint contract, where the proof Tails as to some of the defendants, judgmtat may be taken against one defendant proved liable, and dis- missed as to the others: Ah Lep v. Gong Choy, 13 Or. 205; Fisk v. Henarie, 14 Or. 29. But this does not authorize a recovery against part of the defendants in such case, where the others are also liable: Id. When tenants in common unite in contracting with a broker to sell their land, they are properly joined as de- fendants in an action for breach: Id. 328 Joint and Several Liability. Joint and Several Liability (continued). The contract, and not the fact of their co-tenancy, deter- mines their joint or several liability: Id. In a suit for an accounting between partners, they are usually severally liable, and not jointly: Bloomfield v. Buchanan, 14 Or. 181. But where there is a concerted action by some of the partners to exclude another from the profits, they are jointly and severally liable: Id. Where in an answer in replevin defendants admit a joint taking and detention, they are not entitled to an in- struction that no case has been established as to one of them: Moorhouse v. Donaca, 14 Or. 430. Principal and guarantor are severally, and not jointly, liahle on a contract of guaranty, and should not be joined as defendants: Tyler v. T. of T. A. & P. U., 14 Or. 485. Where an action is brought against two persons on a joint liability, a verdict cannot be sustained unless joint liability is proven: Gove v. Moses, 1 W. T. 7. Judges. See Police Judge. Certificate authenticating record from any state must show judge's ofiicial character: Pratt v. King, 1 Or. 49. But where it does not appear that there are other judges, he is presumed the only judge: Keyes v. Mooney, 13 Or. 179. May appoint special term, under statute: OTCelly v. Ter- ritory, 1 Or. 51. At chambers, have all powers of court, in election con- test: Myers v. Warner, 3 Or. 212. A county judge, elected, holds ofiice for four years except in case of death or resignation: State v. Johns, 3 Or. 533. Indictment against a judge for feloniously receiving ille- gal compensation: State v. Perham, 4 Or. 188. Money illegally received by a judge under a claim for salary may be recovered by county: Grant County v. Sels, 5 Or. 243. Objection that judge is not authorized to sit in a criminal case cannot be taken for the first time in the Supreme Court: State v. Whitney, 7 Or. 386. Judgments and Decrees. 329 Judges (continued). Right to the office cannot be tried collateralljr in a^rim- inal case: Id. Act of 1878 (sec. 2287, Hill's A. L.), providing for election of judges of Supreme and Circuit Courts in distinct classes is not unconstitutional as giving governor power to appoint in the interim: Cline and Newsome v. Green- wood and Smith, 10 Or. 230. The office came into existence a± its creation, and ipse facto became vacant: Id. Act giving judge power to try election contest in vacation is not unconstitutional: Cresap v. Gray, 10 Or. 345. Judge may be compelled by mandamus to sign bill of ex- ceptions: Ah Lep V. Gong Choy, 13 Or. 205. Term of circuit judge is six years; but where vacancy-oc- curs during the term, the person elected holds not for six years, but for remainder of unexpired term : State V. Ware, 13 Or. 380. Judge at chambers cannot make an order dissolving an attachment: Suffern v. Chisholm, 1 W. T. 486. Cannot in vacation supply, by nunc pro tunc &rder, an omission from records of previous term: Hale v. Finch, 1 W. T. 517. Powers in vacation are governed and limited by statute, and it must appear on the face of the record that the judge acted within the statute: Id. Judgments and Decrees. See Appeal and Error; Costs and Disbursements; Jurisdiction; Justice of the Peace; Res Judicata. 1. Rendering and Entry. 2. By Confession. 3. By Default. 4r~EFFECT AND BaR. 5. Lien. 6. Revr'al. 7. Satisfaction. 8. Setting Aside and Vacation. 9. Correction. 10. Impeachment. 11. Action on and Defense. L Rendering and Entry. The court has no authority to enter judgment on award made after referee's authority has expired: Ilamicr, Jennings, & Co. v. Coffin, 1 Or. 99. 330 Judgments and Decrees. Judgments and Decrees (continued). May be entered against appellant and surety on affirm- ance of appeal from County Court: Charman and War- ner V. McLane, 1 Or. 339. For costs and disbursements in preliminary examination against prosecuting witness is void: McDonald v. Cru- zen, 2 Or. 259. In foreclosure suit between several mortgage lien-holders: C havener v. Wood, 2 Or. 182. When judgment on the pleadings will be rendered : Heath- erly v. Hadley, 2 Or. 2G9; Simpson v. Prather, 5 Or. 86; Bowles v. Doble, 11 Or. 474. Of default by county clerk without judicial direction: Graydon v. Thomas, 3 Or. 250; Crawford v. Beard, 12 Or. 447. Judgment entered should show unequivocally what mat- ters were adjudicated: Dray v. Crich, 3 Or. 298. Entry against one defendant served, proper where action is joint and several: Simpson v. Prather, 5 Or. 86. Duty of court in divorce cases to award one third of real property under statute is peremptory: Wetmore v. Wet- more, 5 Or. 469. Having rendered judgment but failed to record same at length, a justice may subsequently record the judgment in his docket: Knapp v. King, 6 Or. 243. In the absence of fraud, a judgment by a justice entered as of the 6th, when rendered on the 11th of April, by a justice, is not void: Saunders v. Pike, 6 Or. 312. Justice may take case under advisement, and without ad- journing to a day certain, afterward render judgment: Id. Court has jurisdiction to hear the testimony in vacation by consent, and render judgment at subsequent term: Roy V. Horslcy, 6 Or. 382. A stipulation for a decree affecting property rights of all parties to a suit, but not entered into by all, cannot be enforced: Adams v. Wilson, 6 Or. 391. Judgment for costs in criminal case, if not entered within reasonable time, does not operate as a lien against pur- chaser without notice: State v. Munds, 7 Or. 80. Judgment must be rendered against all the defendants, in conversion, on general verdict: Cauthorn v. King, 8 Or. 138. Judgments and Decrees. 331 Judgments and Decrees (continued). In action on joint and several contract, judgment may be rendered against some, leaving the action to proceed as to other, defendants: Sears v. McGrew, 10 Or. 48. In action to condemn right of way, judgment for the land, absolutely, cannot be rendered, and an easement only is acquired: 0. R. & N. Co. v. Real Estate Co., 10 Or. 444. Judgment on the pleadings, except in the absence of reply to new matter in the answer, held bad practice: Bowles v. Doble, 11 Or. 474. Judgment rendered upon a verdict found for plaintiff, after testimony of defense was excluded, on the objec- tion that the answer did not constitute a defense, is viewed strictly on appeal: Specht v. Allen, 12 Or. 117. In an action on a joint obligation, judgment may be had against one defendant proved liable, and dismissed as to the others: Ah Lep v. Gong Choy, 13 Or. 2U5. Upon taking judgment against the debtor ordering at- tached property sold, no further judgment can subse- quently be entered against the garnishee: Carter, Rice, & Co. V. Koshland, 12 Or. 492; modified. Carter, Rice, & Co. V. Koshland, 13 Or. 615. Judgment cannot order attached property sold, when at- tachment has already been released: Ah Lep v. Gong Choy, 13 Or. 205. After judgment against the principal debtor, and after the garnishee proceedings are subsequently determined, judgment against the garnishee may be entered : Carter, Rice, & Co. V. Koshland, 13 Or. 615. In an action on a contract against several defendants, if the proof fails as to some, the judgment may be ren- dered against those proved liable: Fisk v. Ilenarie, 14 Or. 29. Judgment non obstante veredicto cannot be rendered, be- cause of a defective statement in the pleadings, if the defect is such as can be cured by verdict: Andros v. Childers, 14 Or. 447. Entry of verdict of guilty, and copy of warrant of execu- tion, do not constitute a judgment in a criminal case: Regan v. Territory, 1 W. T. 31. District Court cannot, even with consent of parties, enter, 332 Judgments and Decrees. Judgments and Decrees (continued). as of a past term, decree made at chambers in vacation: Puget Sound Ag'l Co. v. Pierre Co, 1 W. T. 75. Record showing motion for new trial overruled, and the following entry: "Whereupon the court orders that plaintiff pay the costs of suit, and that the execution issue therefor," — the entry is a valid judgment: Hunt- ington V. Blakeney, 1 W. T. 111. Judgment on note cannot be entered for three per cent per month interest, though the stipulation in the note be for such rate, when the legal rate was six per cent at the time of executing the note: Roeder, Peabody, & Co. v. Brown, 1 W. T. 112. Judgment against defendant who has given bond for re- lease of attachment may be entered against his sure- ties also, to the extent of their stipulation in the bond: Rodolph V. Mayer, 1 W. T. 133. When the whole amount of the debt, secured by mort- gage, is due, judgment may be rendered therefor, to have same effect as a lien, as other judgments, except as to manner of being satisfied: Hays v. Miller, 1 W. T. 143. Simple decree of foreclosure cannot be amended nunc pro tunc to make it a lien on all tlie debtor's property, so as to prejudice a prior mortgage or encumbrance on other property of the mortgagor: Id. Judgments nunc pro tunc are only rendered in further- ance of justice; never to work injustice: Id. Judgment against husband for reasonable expenses of wife, including counsel fees, is properly rendered on dismissing husband's suit for divorce at his motion: Thorndike v. Thorndike, 1 W. T. 175. Power of judge in vacation to render nunc pro tunc judg- ment to supply omission in records of previous term is to be strictly exercised within the statute: Hale v. Finch, 1 W. T. 517. Such authority does not appear for entering the judgment in this case, nunc pro tunc, by judge in vacation, to have relation as of term: Id. Judgment not entered in journal, nor bearing file mark of clerk, may be established by competent proof after death of judge who rendered it: Eakin v. McCraith, 2 W. T. 112. Judgments and Decrees. 333 Judgments and Decrees (continued). Judge in vacation, at chambers,may render judgment in default in any case ponding in the district, though he is not in the county wliere the suit was commenced, at the time of rendering judgment: Murne v. Schwabacher Bros. & Co., 2 W. T. 130. Judgment for nominal damages is properly rendered where the pleadings admit the facts, and the plaintiff moves for judgment on the pleadings instead of going to trial on the question of the amount of damages: Had Ian v. Ott, 2 W. T. 1G5. wu 1, Judgment presumed entered before notice of appeal, though the latter appears on the record before the former, both being in the records of the same day: P. S. I. Co. v. Worthington, 2 W. T. 472. 2. By Confession. By partner, not binding on his partner or firm property, unless made in an action pending: Richardson v. Ful- ler, 2 Or. 179. Sworn statement that the indebtedness arose on promis- ing notes for money is insufficient: Id. Statement must be definite and particular: Id. After action brought, the confession need not state the facts out of which the indebtedness arose: Miller v. Bank of British Columbia, 2 Or. 291; Miller v. Oregon City Mfg. Co., 3 Or. 24. Such judgment can only be impeached, if regular on its face, by suit inequity for fraud: Id.; Allen v. Norton, G Or. 344. . President of corporation is competent to confess judgment against a private corporation: Id. Question of fraud in obtaining should not be determined on motion and aflidavits: Id. ColTrt refused to set aside a judgment obtained by confes- sion in favor of director and against his corporation : Id. Judgment indorsed on the statement and entered in judg- ment-book have each the force of duplicate copies, and each is original: King v. Iliggins, 3 Or. 406. Omission of clerk to enter same in judgment-book does ' not affect judgment, except in favor of one who has been misled by it: Id. Guardian ad litem may have full power to bind an infant 334 Judgments and Decrees. Judgments and Decrees (continued). defendant by admissions, even to the confession of judgment: English v. Savage, 5 Or. 518. A judgment by confession on a contingent liabihty is vahd, and may be enforced by execution: Allen v. Norton, 6 Or. 344. 8. By Default. A judgment for failure to answer an amended complaint is erroneous unless the record affirmatively shows that the defendant was served with a copy of the amenxled complaint: Tolmie v. Otchin, 1 Or. 95. A default against corporation, erroneous unless the record shows that service was had upon proper officer: Wil- lamette Falls etc. Co. v. WiUiams, 1 Or. 112. Allegations of complaint will not aid return in this re- spect: Willamette Falls etc. Co. v. Clark, 1 Or. 113. Default, where record shows demurrer to complaint un- disposed of, is error: Willamette Falls etc. Co. v. Smith, 1 Or. 181. Upon default in Justice's Court, District Court has discre- tionary power to allow answer and defense on appeal: Crandall v. Piette and Davidson, 1 Or. 226. Default on complaint on note not alleging facts, but mere conclusions, erroneous: Williams v. Knighton, 1 Or. 234. After service of summons to appear "forthwith " is wholly void: Hunsaker v. Coffin, 2 Or. 107. County clerk may enter, without judicial direction in cer- tain cases: Graydon v. Thomas, 3 Or. 250; Crawford v. Beard, 12 Or. 447. In so doing his function is ministerial, not judicial: Id. Such judgment will not be disregarded for slight infor- malities: Id. Judgment for want of answer can only be taken when de- fendant has been duly served, and has not answered within the time allowed by law: Smith v. Ellendale Mill Co., 4 Or. 70; TrullengerV. Todd, 5 Or. 36; Mitchell v. Campbell, 14 Or. 454. When answer is stricken out in Justice's Court, and defend- ant refuses to answer, judgment given is judgment for want of answer, and not appealable: Long v. Sharp, 5 Or. 438. Judgments and Decrees. 335 Judgments and Decrees (continued). Refusal to set aside default is discretionary, and will not be reviewed on appeal, except in case of abuse: White V. Northwest Stage Co., 5 Or. 99; Bailey v. Williams, 6 Or. 71. Default in Justice's Court set aside where docket does not show that defendant was given an hour to appear: Gaunt V. Perkins, 8 Or. 354. Default after due service, but without allowing defendant full time to plead, is not void, but erroneous: Wood- ward V. Baker, 10 Or. 491. Judgment in default has the same effect as res judicata as though rendered after verdict: Neil v. Tolman, 12 Or. 289. Entry of default by clerk in vacation is not unconstitu- tional: Crawford v. Beard, 12 Or. 447. Upon service of summons by a " deputy constable," the record not showing the appointment of any such person, is void: Prickett v. Cleek, 18 Or. 415. Default upon service by publication, where the statutory requirements have not been complied with, and before time for answering expired, is void: Montgomery v. Manning, 1 W. T. 434. Rendered in chambers by judge at another county in same district where suit is commenced is valid: Murne v. Schwabacher Bros. & Co., 2 W. T. 130. 4. Effect and Bar. Decision of surveyor-general in favor of occupant's right of possession of claim bars inquiry by the courts: Pin V. Morris, 1 Or. 230. Decree between persons having no interest in land in con- troversy void: Lownsdale v. Portland, 1 Or. 381. Of-^ounty Court, in action in which title to real property was in issue, is not wholly void, and the sending up the papers and proceedings on appeal operates as cer- tificate to Circuit Court: Gird v. oNIorehouse, 2 Or. 53. Effect of judgment in another state against joint debtors, upon party appearing therein: Swift v. Stark, 2 Or. 97. Such judgment is a merger of the original contract sued upon, and prima facie evidence against joint debtors not served or appearing: Id. Defendant appearing in the original cause cannot have 836 Judgments and Decrees. Judgments and Decrees (continued). the same re-examined in an action on the judgment: Id. Effect of decree in foreclosure suit, as regards subsequent lien creditors made parties: Chavener v. Wood, 2 Or. 182. In pleading a former suit as a bar, it is necessary to state facts showing the matter determined therein: Heatherly V. Hadley, 2 Or. 269. Judgments bind only parties and privies: Ritchey v. Ris- ley, 3 Or. 184. Of inferior tribunal acting within its jurisdiction, binding until reversed: Warner v. Myers, 3 Or. 218. Under statute of 1854, court had power to transfer the property of the party in fault in divorce proceedings, and vest it in the children: Groslouis v. Northcut, 3 Or. 394; Doscher v. Blackiston, 7 Or. 403. Order in divorce case assigning custody of minor children to one of the parties is a decree appealable: Pittman V. Pittman, 3 Or. 472; contra, Tierney v. Tierney, 1 W. T. 568. Recital in a decree of due service will not preclude a party from denying, when disproved by the return: Heatherly V. Hadley and Owen, 4 Or. 2; Northcut v. Lemery, 8 Or. 316. A decree of divorce, containing no provisions as to prop- erty, the complaint making no allusion thereto, gives no right thereto: Bamford v. Bamford, 4 Or. 30. Such decree cannot be disturbed except by proceedings in the nature of bill of review: Id. Party cannot claim benefit of judgment, and at the same time appeal from it: Moore v. Floyd, 4 Or. 260; Lyons V. Bain, 1 W. T. 482. ' . . . Decree which operates as a deed is admissible in eject- ment, to prove title: Dolph v. Barney, 5 Or. 193. Recital in, of due service conclusive, unless clearly con- tradicted in the judgment roll: Ladd v. Higley, 5 Or. 296. Judgments in criminal cases, for fine or for costs and disbursements, may be enforced as in a civil action: Whitley v. Murphy, 5 Or. 328. Judgments of the territorial courts transferred to state Judgments and Decrees. 837 Judgments and Decrees (continued). courts, by act of June 4, 1859, are not affected by the repeal of the act, and are enforceable as before: Strong V. Barnhart, 5 Or. 496. Decree against infant, without fraud, where the court has jurisdiction, is as binding as against an adult: English V. Savage, 5 Or, 518. Judgment of County Court, admitting will to probate, is conclusive until vacated or impeached: Hubbard v Hubbard, 7 Or. 42. Decree of foreclosure against an estate, where the heirs are not made parties, is void: Renshaw v. Taylor, 7 Or. 315. Decree divesting title to real property, and vesting it in another person, is inoperative to divest the title, if the court had no power to vest it in such person: Doscher V. Blackiston, 7 Or. 403. The effect of a decree is interpreted and determined by the intention in making it: Id.; Harvey's Heirs v. Wait, 10 Or. 117. Effect of a decree in equity, on a judgment at law, con- cerning the same property: Starr v. Stark, 7 Or. 500. Decree in equity operates on the person, and not on the judgment, in such case: Id. Decree establishing a party's right to property, from which he has been ejected at law, operates on the parties, and may enjoin the enforcing of the judgment: Id. Conclusive as to all issues, whether actually litigated or not, and parol evidence is not admissible to show that certain issues were withdrawn: Barrett v. Failing, 8 Or.. 152; Glenn v. Savage, 14 Or. 567. Judgment on note of principal, no bar to action against principal and surety on another note given as collateral security: McCullough v. Hellman, 8 Or. 191. Decision of board of school land commissioners is con- clusive, and cannot be reviewed by state courts: Corpe v. Brooks, 8 Or. 222. The principle of stare decisis is the policy of the courts, especially where to overrule a former decision will work a conviction: State v. Clark, 9 Or. 466. W-hether a decree in administration proceeding is final or not depends on the intention of the court: Harvey's- Heirs v. Wait, 10 Or. 117. Or. Dig.— 22 SS8 Judgments and Decrees. Judgments and Decrees (continued). Decisions of secretary of state in the allowance of claims are not judicial in their nature or effect: State v. Brown, 10 Or. 215. Order dissolving or refusing to dissolve an attachment is a final order under the Code: Sheppard v. Yocum, 11 Or. 234; Suffern v. Chisholm, 1 W. T. 486. Judgment is conclusive as to all matters litigated, or that might have been litigated, in the suit: Neil v. Tolman, 12 Or. 289; Glenn v. Savage, 14 Or. 567. Judgment in default has the same effect as judgment after verdict, as res judicata: Id. In an attachment suit, a judgment ordering the property sold, as required by act of 1878 (sec. 157, Hill's A. L.), ends the proceedings against garnishee: Carter, Rice, & Co. V. Koshland, 12 Or. 492; S. C. modified, 13 Or. 615. No general judgment against the garnishee can subse- quently be rendered in such suit after judgment in the main suit: Id. Judgment, though erroneous, is valid until reversed on appeal: Nicklin v. Hobin, 13 Or. 406. Decree quieting title does not bind one who holds unre- corded deed, not a party to the suit, where the adverse claimant has notice, and the deed is placed of record during the suit: Walker v. Goldsmith, 14 Or. 125. Judgment against a defendant for divorce and alimony cannot bind a third person mentioned therein, not a party, by enjoining him from paying over money: Madison v. Madison, 1 W. T. 60. Judgment rendered upon the merits will not be affected by an erroneous ruling on an attachment: Williams & Co. V. Miller & Co., 1 W. T. 88. Judgment on foreclosure will have same effect as a lien as other judgment, only differing in the manner of be- ing satisfied, if the whole debt is due, and the judg- ment is rendered accordingly: Hays v. Miller, 1 W. T. 143. But simple decree for sale of mortgaged premises does not have effect as a lien on property outside the mort- gage, and cannot be amended nunc pro tunc in this respect, to the prejudice of intervening rights: Id. Decree is final when it disposes of whole controversy, leav- Judgments and Decrees. 339 Judgments and Decrees (continued). ing nothing for court to do: Sloop Lconede v. United States, 1 W. T. 153. Otherwise, is interlocutory, though it may, to a great ex- tent, dispose of the merits of the cause: Id. Refusal of District Court to allow the docketing of a cause on appeal from a Justice's Court, for the purpose of showing the fact of destruction of the record by fire, and to supply the loss, is a final judgment: Mullen v. Mul- len, 1 W. T. 192. Ruling on a motion to vacate a judgment is not a final judgment within the meaning of the Code: Hancock V. Stewart, 1 W. T. 323. Sentence in criminal case constitutes the final judgment: Lytic V. Territory, 1 W. T. 435. A pro forma judgment is not a final judgment, unless transcript contains certificate prescribed in section 18, page 25, Laws of 1875: Mullen v. McGilvrey, 1 W. T. 513. Order of District Court awarding custody, and fixing allowance for child, is interlocutory, not final: Tierncy V. Tierney, 1 W. T. 568. A collusive decree of foreclosure having been entered with the intent of subordinating the rights of a third party, it being a sham and a fraud, determines no rights, and equity will not give it effect: Connoly v. Cun- ningham, 2 W. T. 242. 5. Lien. Judgment at law is not a lien on an equitable interest in; land: Smith v. Ingles, 2 Or. 43; Bloomfield v. Huma- son, 11 Or. 229. Plaintiff" in execution, becoming purchaser, extinguishes' his^specific lien on the premises: Chavener v. Wood, 2 Or. 182. Judgment lien may be kept alive until paid: Murch v. Moore, 2 Or. 189; Dearborn v. Patton, 3 Or. 420; Strong V. Barnhart, 5 Or. 49G. Lien begins from time of docketing, subject to known equitable rights in the land: Stannis v. Nicholson, 2 Or. 332. Filing transcript on appeal from justice, not sufficient docketing to give lien on realty: Dearborn v. Patton, 4 Or. 58. 340 Judgments and Decrees. Judgments and Decrees (continued). Repeal of statute; an existing lien not destroyed by act of 1864 in regard to judgment liens: Dearborn v. Pat- ton, 3 Or. 420. Durat'on of existing lien extended by new statute indefi- nitely: Id. Effect of docketing judgment in partnership name, where the judgment debtor's name is properly entered, is the same as notice as though each partner's name was en- tered: Id. Under act of 1855, certified transcript, and not mere ab- stract of justice's judgment, must be filed with county clerk to acquire lien on realty: Dearborn v. Patton, 4 Or. 58. Time for acquiring lien of justice's judgment on realty being expired, there is no right to sue in Circuit Court, and make it such lien, without a showing in excuse for laches: Pitzer v. Russel, 4 Or. 124. In felony cases, state has a lien for satisfaction of judg- ment from time of commission of the offense: Whitley V. Murphy, 5 Or. 328; State v. Munds, 7 Or. 80. In such cases, the lien will be satisfied from propert}' con- veyed, in the inverse order of alienation, and that last sold is first to be charged: Knott v. Shaw, 5 Or. 482. In felony cases, is enforced by execution as in civil ac- tions; but if the property has been conveyed away, must be by suit in equity: State v. Munds, 7 Or. 80. Lien in criminal case must be docketed within reason- able time to bind a purchaser without notice; after next term of court, not reasonable: Id. In criminal case, does not attach to homestead tlie title to which is in the United States: State v. O'Neil, 7 Or. 141. Judgments rank as liens on after-acquired property in the order of their docketing: Creighton v. Leeds, Palmer, & Co., 9 Oi:. 215. Any mark in the judgment-lien docket usually employed in business to indicate dollars and cents is suflicient to denote that the figures represent money: De Lash mutt V. Sell wood, 10 Or. 319. Junior lien-holder not made party is not affected by fore- closure of a prior mortgage, and has a right to sell on ex- ecution, and is not limited to mere right to redeem: Id. Judgments and Decrees 341 Judgements and Decrees (continued). Lien acquired with notice of prior unrecorded deed, and not in good faith, will not have priority: Baker v. Woodward, 12 Or. 3. Judgment of foreclosure, when entered for the full amount due under the mortgage, may be made a lien upon all the debtor's property, as other judgments, differing only in the manner of being satisfied: Hays v. Miller, 1 W. T. 143. Simple decree for foreclosure does not constitute a lien on property outside the mortgage: Id. Such decree cannot be amended nunc pro tunc to make it a lien upon all the debtor's property, to the prejudice of the rights of intervening lienors: Id. 6. Revival. On application for leave to issue execution on lapsed judgment, etc., validity may be inquired into: Ilun- saker v. Coffin, 2 Or. 107. Domestic judgment is not barred by statute of limitations in ten \-ears, and may be kept alive until payment thereof is made: Murch v. Moore, 2 Or. 188; Dearborn V. Patton, 3 Or. 420; Strong v. Barnhart, 5 Or. 496. Proceeding to keep judgment alive is strictly analogous to scire facias: Id. What facts are pleadable on motion and answer thereto in such proceeding: McCracken v. Swartz, 5 Or. 62. On defense of nul tiel record, trial court having inspected the record, the Supreme Court will not review tlie de- cision, not having the record before it: Id.; Ladd and Reed v. Higley, 5 Or. 296. The proceeding is a separate proceeding, and a separate judgment roll is to be made up therein: Id. On appeal the court will not look to the evidence heard beTbw, unless in the judgment roll: Id. After five years, domestic judgment can only be enforced by obtaining leave to issue execution under section 292 of the Code (sec. 295, Hill's A. L.): Strong v. Barnhart, 5 Or. 496. In a proceeding to revive a dormant judgment, jurisdic- tion will not be inquired of, unless the want thereof ap- pears upon face of the record: Strong v. Barnhart, 6 Or. 93. 342 Judgments and Decrees. Judgments and Decrees (continued). Same presumption in favor of judgment in proceedings to revive, as on collateral attack: Id. Only defense admissible is nul tiel record, or satisfaction: Id. Justice's Court has not, and Circuit Court has, jurisdiction to revive a justice's judgment, a transcript of which has been docketed in the Circuit Court: Glaze v. Lewis, 12 Or. 347. 7. Satisfaction. A court has power to direct cancellation of record of its judgment when it is made to appear that it is satisfied: Provost V. Millard, 3 Or. 370. Court refused to direct party to appear and cancel satis- fied judgment in another district: Id. After accepting and satisfying judgment, party cannot ap- peal from it: Moore v. Floyd, 4 Or. 260; Lyons v. Bain, 1 W. T. 482. After satisfaction, additional cost bill cannot be filed, and execution thereon issued: Snipes v. Breezley, 5 Or. 420. Party is not precluded by paying judgment from appeal- ing therefrom: Edwards v. Perkins, 7 Or. 149. Satisfaction of judgment against surety operates as satis- faction of a separate judgment against principal, though the former was for an amount less than the latter: Cox V. Smith and Forward, 10 Or. 418. An attempted reservation by the judgment creditor in his entry of satisfaction of the judgment against the surety of "all rights" against the principal debtor is void, though the judgment against the principal is the larger judgment: Id. By accepting fruits of a decree, party is estopped from ap- pealing: Lyons v. Bain, 1 W. T. 482. The fact that all the money received, excepting the statu- tory attorney's fee, was returned, does not change the rule: Id. Acceptance by the attorney as a general rule will be re- garded as acceptance by his client: Id. 8. Setting Aside and Vacation. Under Code, court can relieve a party from a judgment taken inadvertently, witliout resort to equity, and in- Judgments and Decrees. 343 Judgments and Decrees (continued). junction will not issue to prevent the enforcement of the judgment: Wells, Fargo, & Co. v. Wall, 1 Or. 295. Bill, to set aside a judgment at law, must show specific fraud, accident, surprise, or mistake: Snyder v. Vannoy and Hyland, 1 Or. 344. And it must appear that the matters complained of could not have been interposed in the suit: Id. Judgment by default entered by county clerk not set aside for slight informalities: Graydon v. Thomas, 3 Or. 250. Bill of review to set aside judgment is an original bill, not entertained by virtue of appellate jurisdiction: White V. Allen, 3 Or. 103; Kennard v. Sax, 3 Or. 263. A defective decree may be reformed under a prayer for general relief in the bill: Id. Where debt is justly owing, equity will not interfere, though judgment is erroneous: Kennard v. Sax, 3 Or. 263. That defendant was insane at time of trial, not sufficient allegation of want of jurisdiction to set aside: Norton V. Harding, 3 Or. 361.' To warrant review, reason must be shown why the facts were not presented and determined: Id. On motion to open decree under section 57 of the Code (sec. 58, Hill's A. L.), fact that affidavit for publica- tion was made on information only may be considered: Smith V. Smith, 3 Or. 363. On such motion, counter-affidavits may be filed: Id. What is a collateral and what a direct attack: Heatherly V. Hadley and Owen, 4 Or. 1. It must be shown that the facts relied upon to set aside decree were not and could not be known at time when decree was rendered: Bamford v. Bamford, 4 Or. 30; 0. R. & N. Co. v. Gates, 10 Or. 514; Crews v. Ricliards, 14 Or. 442. Granting or refusal of motion to set aside default dis- cretionary, and except in case of abuse, not reviewable: - W^hite V. Northwest Stage Co., 5 Or. 99; Bailey v. Wil- liams, 6 Or. 71; Mitchell v. Campbell, 14 Or. 454. A judgment is not vacated by appeal in criminal case: Whitley v. Murphy, 5 Or. 328. 344 Judgments and Decrees. Ju Pigments and Decrees (continued). Bill must set out the matters determined, in such man- ner that in setting aside the judgment the court can adjust the rights of the parties: Saunders v. Pike, 6 312. In the absence of fraud, the judgment will not be set aside for an irregularity which works no injury: Id. Decree, entered by consent against one so infirm as not to understand, will be opened in equity to protect the rights of the latter: Watson v. Smith, 7 Or. 448. Justice cannot set aside his judgment, and grant new trial: Griffin v. Pitman, 8 Or. 342. Judgment in default in Justice's Court, docket not show- ing that defendant was given an hour to appear, set aside on review: Gaunt v. Perkins, 8 Or. 354. Everj'' court has power, whether at same or subsequent term, to vacate its own decree rendered without juris- diction: Ladd and Tilton v. Mason, 10 Or. 308. Judgment in Justice's Court obtained by fraud against defendant having a good defense will be set aside, and enjoined in equity, and defendant allowed to answer: Marsh v. Perrin, 10 Or. 364. Judgment of Justice's Court cannot be set aside for intimi- dation of witnesses by a broil in the court, on account of which a party withdrew; remedy is by appeal: Scog- gin V. Hall, 12 Or. 372. Though bills for review have been abolished in form by the Code, the remedy to set aside a decree exists by suit in equity: Crews v. Richards, 14 Or. 442. But such suit cannot be maintained where the facts re- lied on were both known, and could have been used in the former suit: Id. Refusal to set aside a default upon proper showing made is an abuse of discretion: Mitchell v. Campbell, 14 Or. 454. Delay in suing to set aside a fraudulent decree does not amount to laches, unless the party had knowledge or means of knowing the fraud: Sedlak v. Sedlak, 14 Or. 540. But acquiescence and enjoyment of the benefits of a de- cree for thirty years amounts to fatal laches, and bars relief: Id. Judgments and Decrees. 345 Judgments and Decrees (conti'nued). Dcfecti\'e aflidavit in an attachment not cause for setting aside judgment: Nesqually Mill Co. v. Taylor, 1 W. T. 1. Defect in record not materially affecting merits, not suf- ficient cause for setting aside judgment: Id. District Court has no power to vacate judgment at the next term of court subsequent to the term in which rendered: Hancock v. Stewart, 1 W. T. 323. Court of equity cannot set aside a decision made by a competent tribunal, as the Secretary of Interior in a proper case for his decision, except for fraud or mis- take: Sparks V. Brown, 2 W. T. 426. 9. Correction. Defective decree may be reformed under a prayer for gen- eral relief: White v. Allen, 3 Or. 103. Motion to amend decree too late after seventeen months' delay without showing excuse for the delay: Chapman V. Wilbur, 5 Or. 299. Correction of decree of foreclosure is unnecessary to make same properly describe the lands, where the descrip- tion is sufficient to identify same: Board S. L. Com. v. Wiley and Davis, 10 Or. 86. Simple decree of foreclosure cannot be amended by nunc pro tunc order to be a lien upon property not included in the mortgage, to the prejudice of the rights of inter- vening lienors: Hays v. Miller, 1 W. T. 143. Power of judge in vacation to correct record of previous term is to be strictly exercised within the statute: Hale V. Finch, 1 W. T. 517. 10. Impeachment. Court will not go behind the execution upon proceedings to confirm a sale on execution, and on mere motion question the validity of the judgment: Griswold v. Stoughton, 2 Or. 61. Judgment by default, when wholly void, may be attacked: Hunsaker v. Coflin, 2 Or. 107. But not collaterally, where the record shows summons and complaint duly served: Woodward v. Baker, 10 Or. 491. Judgment by confession, regular on its face, may be at- tacked in equity, for fraud only: Miller v. Bank of British Columbia, 2 Or. 291. 346 Judgments and Decrees. Judgments and Decrees (continued). On collateral attack, court will not go outside of justice's docket to learn that constable was not duly appointed: White V. Thompson, 3 Or. 115. Nor to learn that the appearance of defendant was special: Id. Presumption of regularity of judgment does not arise where the pleadings in the case show that no jurisdic- tion was obtained: Groslouis v. Northcut, 3 Or. 394. Recitals in decree, of due service, when the record shows otherwise, do not aid the decree on collateral attack: Heatherly v. Hadley and Owen, 4 Or. 2; Northcut v. Lemery, 8 Or. 316. Every intendment in favor of a judgment rendered by court having jurisdiction: Fulton v. Earhart, 4 Or. 62. Error does not render judgment void when collaterally attacked: Dolph v. Barney, 5 Or. 192. Judgment not void, unless court had no jurisdiction of parties or of subject-matter: Id. Foreign judgment, regular on its face, introduced as evi- dence, may be attacked by extrinsic evidence of fraud or want of notice: Murray v. Murray, 6 Or. 17. Same rule as to collateral attack of judgment by con- fession as other judgments: Allen v. Norton, 6 Or. 344. Judgment in ejectment is conclusive as to defendant's legal title, and right of possession on collateral attack: Hill V. Cooper, 8 Or. 254. Judgment against a married woman as surety on a note cannot be impeached collaterally, where the record does not show she was a married woman: Farris v. Hayes, 9 Or. 81. Whether defective affidavit on publication of summons may be taken advantage of on collateral attack, qusere; but an insufficient order of publication may: Odell v. Campbell, 9 Or. 298. What publication, and proof of publication, insufficient to sustain judgment on collateral attack: Northcut v. Lemery, 8 Or. 316; Odell v.*Campbell, 9 Or. 298. Presumption in favor of judgment of court of general jurisdiction does not obtain where the court is exercis- ing special statutory power: Northcut v. Lemery, 8 Or. 316; Odell v. Campbell, 9 Or. 298. Judgments and Decrees. 847 Judgments and Decrees (continued). Judgment by default after service, but without allowing defendant full time to plead, is not open to collateral attack: Woodward v. Baker, 10 Or. 491. Decree of court on distribution of an estate, ordering pay- ment of the share of a devisee to be paid to an assignee thereof, is void on collateral attack: Harrington v. La Rocque, 13 Or. 344. Where proper service has been had, the court may allow amendment of record to show that fact, after rendition of judgment upon the assumption of due service, and such amended return protects the judgment from collateral attack: Blinn v. Crosby, 2 W. T. 109. 11. Action on, and Defense. Defendant in a judgment cannot be garnished by creditor of plaintiff therein: Norton v. Winter and Lattimer, 1 Or. 47; Despain v. Crow, 14 Or. 404. Efllect of foreign judgment against joint debtors in action in Oregon thereon: Swift v. Stark, 2 Or. 97. Domestic judgment does not fall within statute of limita- tions: Murch V. Moore, 2 Or. 189; Dearborn v. Patton, 3 Or. 420; Strong v. Barnhart, 5 Or. 496. In Oregon it is in the power of a judgment creditor to keep judgment alive forever: Id. In pleading judgment of court of special jurisdiction, need not state facts that show the court had jurisdiction: Toby V. Ferguson, 3 Or. 27. Judgment creditor has no right to sue on domestic judg- ment, unless necessary to give him the full benefit of his judgment: Pitzer v. Russell, 4 Or. 124. So where he has failed to make judgment of justice a lien on debtor's realty, he cannot sue thereon to acquire such lien without explaining his laches: Id. Riglit of action on undertaking for costs does not pass to assignee by assignment of judgment: Dray v. Mayer, 5 Or. 185. Statute of limitations does not apply to proceedings under section 292 of the Code (sec. 295, Hill's A. L.), in re- ference to enforcing dormant judgments: Strong v. 'Barnhart, 5 Or. 496. Decree of divorce must be pleaded in answer in equity to be admissible as evidence: Murray v. Murray, 6 Or. 26. Allegation of judgment of court of inferior jurisdiction 348 Judgments and Decrees. Judgments and Decrees (continued). must show facts conferring the jurisdiction: Dick v. Wilson, 10 Or. 490. Pleading judgment of a Justice's Court must allege the beginning of the action, the court, the nature and amount of the claim, and that judgment ^Yas duly given thereon: Page & Co. v. Smith, 13 Or. 410. Judgment Roll. Absence of material paper from judgment roll no ground for reversing judgment: Carland v. Heineborg, 2 Or. io. Return, in obedience to writ of review, is part of judgment roll: Johns v. Marion County, 4 Or. 46. Under the Code, the record includes all papers and pro- ceedings in the judgment roll: Tustin v. Gaunt, 4 Or. 305. Judgment roll is proper preliminary proof to warrant proof of sheriff's sale: Gilmore v. Taylor, 5 Or. 89. What is necessarv in judgment roll in probate proceedings: Id. Separate judgment roll necessary in proceedings for leave to issue execution on dormant judgment: Ladd v. Hig- ley, 5 Or. 296. Jurors cannot be called to testify in subsequent suit that issues included in the judgment roll were not tried: Un- derwood V. French, 6 Or. 66. Motion for new trial and proceedings thereon are not part of judgment roll, and must be put in the bill of excep- tions to be a part of the roll to be considered on appeal: Oregonian R'y Co. v. Wright, 10 Or. 162; Chung Yow v. Hop Chong, 11 Or. 220; State v. Drake, 11 Or. 396; McAllister v. Territory, 1 W. T. 360; but see Bowen v. State, 1 Or. 270; Kearney v. Snodgrass, 12 Or. 311; State V. Becker, 12 Or. 318; Jones v. Wiley, 1 W. T. 603. Where statute does not prescribe what papers constitute the roll, all filed should be placed in the roll: Ankeny V. Fairview Milling Co., 10 Or. 390. Affidavits in support of motion for order to abate nuisance are properly in the roll: Id. Referee's report in action at law is no part of the judg- ment roll or transcript: Osborn v. Graves, 11 Or. 526. Jurisdiction. 349 Judicial Sales. See Executions, and Proceedings Supple- mental; Guardian and Ward; Mortgages. Jurisdiction. See Equity. 1. In General. 2. Supreme Court. 3. Circuit and District Courts. 4. County Court. 5. Justice of the Peace. 6. Other Tribunals and Officers. .7. Particular Cases. 1. In General. Where the power to act is inherent, the act is valid though irregularly done; otherwise, where the power is special: Cason V. Stone, 1 Or. 39. In inferior tribunals, jurisdictional facts must appear affirmatively upon the face of the record: Thompson v. Multnomah County, 2 Or. 34; Johns v. Marion County, 4 Or. 46; Dick v. Wilson, 10 Or. 490. Inferior tribunal having once acquired jurisdiction, sub- sequent proceedings presumed regular: Id. In pleading judgment of court of special jurisdiction, need not state the facts that confer jurisdiction: Toby v. Fer- guson, 3 Or. 27. Though complaint may not state cause of action, court may have jurisdiction: Norman v. Zieber, 3 Or. 197. If inferior tribunal acts within its jurisdiction, its decision, though erroneous, is binding until reversed: Warner v. Myers, 3 Or. 218; C. & G. Road Co. v. Douglas County, 5 Or. 280. Judgment of court having jurisdiction conclusive, and that defendant was insane at time of trial, is not suffi- cient showing of want of jurisdiction: Norton v. Hard- ing, 3 Or. 361. Every court has power over its own process and to prevent its abuse: Provost v. Millard, 3 Or. 370. May direct a decree of record before it, to be canceled wlien satisfied: Id. Every intendment in favor of judgment of court of com- petent jurisdiction: Groslouis v. Northcut, 3 Or. 394; ' Fulton V. Earhart, 4 Or. 61; Tustin v. Gaunt, 4 Or. 305. But even after judgment, if on the face of the pleadings the court had no jurisdiction, no presumption in its favor arises: Id. 350 Jurisdiction. Jurisdiction (continued). Having obtained jurisdiction for one purpose, equity holds it for all connected therewith: Heatherly v. Hadley and Owen, 4 Or. 1. Record reciting facts requisite to confer jurisdiction is conclusive when attacked collaterally: Id. When the record is silent, jurisdiction is presumed: Id.; Tustin V. Gaunt, 4 Or. 305. When the record shows that the cause of action or the parties were beyond the jurisdiction of the court, no presumption in favor of judgment, and it is void: Id.; Northcut V. Lemery, 8 Or. 316. Strict compliance necessary in attempting to acquire ju- risdiction by statute: Id.; Northcut v. Lemery, 8 Or. 316; Odell v. Campbell, 9 Or. 298. , Jurisdictional defects cannot be disregarded as not af- fecting substantial rights: Johns v. Marion Co., 4 Or. 46. Objections to, not waived by answer to the merits: King and Lownsdale v. Boyd, 4 Or. 326; Goldsmith v. The Revenue Cutter, 6 Or. 250; Tolmie v. Dean, 1 W. T. 46. Where want of jurisdiction appears, it is the duty of the court at any stage, on its own motion, to dismiss: Evans V. Christian, 4 Or. 375; McKay v. Freeman, 6 Or. 449; State V. McKinnon, 8 Or. 487; Tolmie v. Dean, 1 W. T. 46. Error does not render a judgment void on collateral at- tack: Dolph V. Barney, 5 Or. 192. Judgment is not void, unless court had no jurisdiction of parties or subject-matter: Nicklin v. Ilobin, 13 Or. 406. Where court has jurisdiction of the subject-matter, volun- tary appearance cures defect of service, and gives the court jurisdiction of the parties: White v. Northwest Stage Co., 5 Or. 99. Nothing short of clear contradiction in judgment roll will overcome recital of jurisdiction in judgment: Ladd v. Higley, 5 Or. 296. United States cannot be sued in, or its property taken under process of, state court: Goldsmith v. The Revenue Cutter, 6 Or. 250. Objection to jurisdiction is not waived by government by pleading to the merits: Id, Jurisdiction. 351 Jurisdiction (continued). Court of general jurisdiction exercising a special statutory- power must show by its records a strict compliance with statute: Northcut v. Lemery, 8 Or. 316; Odell v. Campbell, 9 Or. 298. Jurisdiction is not presumed from recitals in decree of due service by publication, where the record shows that sufficient time had not elapsed after filing complaint: Id. Want of jurisdiction appearing on the face of the record is considered on appeal, but no errors not specifically- assigned in the notice of appeal can be considered: State V. McKinnon, 8 Or. 487. Presumption in favor of judgment of a court of general jurisdiction is confined to matters within the scope of its general jurisdiction, and docs not extend to statu- tory and special proceedings: Odell v. Campbell, 9 Or. 298. In pleading judgment of inferior court, so much of the proceedings must be stated as to show that the court had acquired jurisdiction: Dick v. Wilson, 10 Or. 490. From the time of service, court has jurisdiction, and sub- sequent proceedings, though erroneous, are not void: Woodward v. Baker, 10 Or. 491. After service, judgment by default without allowing de- fendant full time to plead cannot be collaterally at- tacked: Id. Judgment, though erroneous, is valid until reversed on appeal: Nicklin v. IIobin,.13 Or. 406. Court having jurisdiction to render a judgment for costs, though it enters an erroneous judgment, appeal and not injunction is the remedy to prevent its enforcement: Id. Wan^of jurisdiction, and failure to state sufficient facts, are never cured except by supplying the defects: Tol- mie V. Dean, 1 W. T. 46. The appellate and general jurisdiction of the courts of Washington Territory under the Organic Act: Nickels V. Grifiin, 1 W. T. 374. 2. Supreme Court. Jurisdiction of Supreme Court is appellate and revisory- only: Boon V. McClane, 2 Or. 331. Supreme Court cannot review an order partially reraov- 352 Jurisdiction. Jurisdiction (continued). ing a cause to United States court: Fields v. Lamb, 2 Or. 340. Parties cannot waive notice of appeal, and give the court jurisdiction: Oliver v. Harvey, 5 Or. 360. Supreme Court gains no authority for review after the time limited for taking error has expired, though the parties consent: Stark v. Jenkins, 1 W. T. 421. Supreme Court gains jurisdiction over the subject-matter by precipe, and over the person by service of notice: Schwabacher v. Wells, 1 W. T. 506. Unless it satisfactorily appears that the transcript con- tains all the evidence, Supreme Court has no jurisdic- tion: McGown V. Petit, 1 W. T. 514. Service of notice of appeal on the clerk of the District Court is essential to give Supreme Court jurisdiction: BUnn V. Crosby, 2 W. T. 109. "Without joinder in the appeal, appearance, or service of notice, the Supreme Court gains no jurisdiction: Parker V. Denny, 2 W. T. 360. 3. Circuit and District Courts. Circuit Court has supervisory control of inferior tribunals by certiorari: Thompson v. Multnomah Co., 2 Or. 34. The Circuit Court has power, under the acts of Congress, to make an order removing a cause to the United States courts: Fields v. Lamb, 2 Or. 340. Multnomah Circuit Court refused to direct party to appear in ^Marion County, and satisfy decree there: Provost v. Millard, 3 Or. 370. Circuit Court has concurrent jurisdiction with justice in assault and battery: State v. Sly, 4 Or. 277. By consent, a jury may be waived, and trial before the court had in vacation, upon testimony taken before referee: Roy v. Ilorsley, 6 Or. 382. Circuit Court has jurisdiction of both defendants, where both appear and defend, on appeal from justice, though judgment below was against one, and he alone appealed: Cauthorn v. King, 8 Or. 138. Circuit Court will exercise jurisdiction to try the right to office in a city, though a municipal board has been given jurisdictioii by charter: State v. McKinnon, 8 Or. 4'J3. Jurisdiction. 353 Jurisdiction (continued). But otherwise where the charter expressly confers exclu- sive and final jurisdiction on such board: Simon v. Portland Cora. Council, 9 Or. 437. Circuit Court cannot entertain action on bond of admin- istrator removed for misconduct, until a final settlement is had by the County Court: Hamlin v. Kinney, 2 Or. 01; Adams v. Petrain, 11 Or. 304. Where no course of proceeding is provided by the Code, the Circuit Court will have jurisdiction, and may adopt a remedy suitable and conformable to the spirit of the Code: Aiken v. Aiken, 12 Or. 203. Circuit Court has, and justice has not, power to revive a justice's judgment that has been docketed in the Cir- cuit Court: Glaze v. Lewis, 12 Or. 347. Circuit Court, in exercising statutory power, under act of 1878 (c. 28, Hill's A. L.) over insolvents' estates, is- a limited and inferior tribunal: In re Goldsmith, 12 Or. 414. Circuit Court acquires no jurisdiction where, on appeal from justice, the respondent takes up and files the transcript: Steel v. Ilees, 13 Or. 428. District Court has no jurisdiction, even with consent of parties, to enter, as of a past term, a decree rendered in vacation: Puget Sound Ag'l Co. v. Pierce Co., 1 W. T. 75. District Court has no power to try a case on issue of fact, without a jury, where jury trial was not waived: John-- son V. Goodtime, 1 W. T. 484. Actions under sections 48, Practice Act of 1877, must be- brought in court in the county of district in which the subject of the action lies, and the jurisdiction of such court is exclusive: Wood v. Mastick, 2 W. T. G4. 4. County Court. County Court has no power to revise assessments for tax- ation, but clerk and assessor have: Rhea v. Umatilla County, 2 Or. 298; Darragh v. Bird, 3 Or. 246. Has no authority to partition and determine rights of parties to realty of estates: Hanner v. Silver, 2 Or. 336. County Court is a court of superior jurisdiction in probate - matters: Russell v. Lewis, 3 Or. 380; Tustin v. Gaunt,. 4 Or. 305; Mohastes v. Catlin, 6 Or. 119. Ok. Dig.— 23 354 Jurisdiction. Jurisdiction (continued). County Court is a court of limited jurisdiction in laying out roads: Johns v. Marion County, 4 Or. 46; State v. Officer, 4 Or. 180; C. & G. Road Co. v. Douglas County, 5 Or. 280. Jurisdiction of County Courts in laying out roads may be questioned by writ of review: Id. County Court, in appointing guardian for minors and lunatics, is court of superior jurisdiction: Monastes v. Catlin, 6 Or. 119. Such jurisdiction pertains to Probate Courts within article 7, section 12, of the constitution: Id. County Court has exclusive jurisdiction to take proof of wills, and its judgment is conclusive until impeached: Hubbard v. Hubbard, 7 Or. 42. The whole record, and not the petition alone, will be ex- amined to ascertain whether a court had power to ad- mit a will to probate: Moore v. Willamette T. & L. Co., 7 Or. 359. County Court may assess damage for taking materials for repairing road from private land: Kendall v. Post, 8 Or. 141. lias exclusive jurisdiction in matters pertaining to pass- ing title to personalty of deceased persons: Winkle v. Winkle, 8 Or. 193. Jurisdiction of County Court to sell realty on administra- tion of estate depends upon the sufficiency of the peti- tion: Wright and Jones v. Edwards, 10 Or. 298. The petition must strictly pursue the statute, and juris- diction must appear affirmatively therefrom: Id. County Court has exclusive jurisdiction in the first in- stance to grant or revoke letters of administration: Ramp v. McDaniel, 12 Or. 108. Its probate powers are not created by statute: Id. 5. J L' STICK OF THE PeACE. Statute increasing justice's jurisdiction to $250 is consti- tutional: Noland v. Costella, 2 Or. 57. A city recorder may be given ex officio jurisdiction as jus- tice of the peace within city limits: Ryan v. Harris, 2 Or. 175; Craig v. Mosier, 2 Or. 323. Jurisdiction of committing magistr^ite may be inquired into on return of writ of habeas corpus: Norman v. Zicber, 3 Or. 197. Jurisdiction. 355 Jurisdiction (continued). Of justice, continues after being once obtained over sub- ject-matter, until final disposition: Knapp v. King, 6 Or. 245. Having rendered judgment void for want of proper service, justice may issue alias summons: Id. Statute creating offense, and affixing penalty to be recov- ered by action before justice, confers exclusive jurisdic- tion on Justices' Courts: Multnomah County v. Knott, 6 Or. 279. Justice has jurisdiction to exclusion of Circuit Court in forcible entry and detainer: Thompson v. Wolf, 6 Or. 308. Justice has jurisdiction when service of summons is had in the county, although not in his precinct: Taylor v. Jenkins, 11 Or. 274. When the title to real property comes in question in Jus- tice's Court, jurisdiction is ousted: Sweek v. Galbreath, 11 Or. 516; Aikin v. Aikin, 12 Or. 203. The test of the jurisdiction of a justice of the peace is the sum recovered, not the sum claimed: Bagley v. Car- penter, 2 W. T. 19, overruling Ebey v. Engle and Hill, 1 W. T. 72. 6. Other Tribunals and Officers. Where an officer is known and recognized as having au- thority, the court will presume he acted within his juris- diction, where the verification of a pleading was taken before him: Dennison v. Story, 1 Or. 272. Jurisdiction of person administering oath must appear in his certificate: Blanchard v. Bennett, 1 Or. 328. Police judge may be given powers of justice within the city, but cannot be limited to criminal cases; State v. Wiley, 4 Or. 184. His jurisdiction is identical with justice in civil as well as in criminal cases: Id. Jurisdiction of police judge of the city of Portland: Id.; Portland v. Denny, 5 Or. 160. Territorial Probate Court was a court of inferior jurisdic- tion: Farley v. Parker, 6 Or. 105. 7. -Particular Cases. Surveyor-general has, and courts have not, power to settle boundaries of public lands: Woodsides v. Rickey, 1 Or.- 108; Lee v. Simonds, 1 Or. 158. 356 Jurisdiction. Jurisdiction (continued). Where settler is in possession, courts can protect his claim from invasion: Id.; Colwell v. Smith, 1 W. T. 92 In such case the court will exercise jurisdiction without entertaining the objection that the claim under the Donation Act is not in "compact" form: Lee v. Si- monds, 1 Or. 158. Courts will not entertain proceedings arising out of facts to be determined by land department of the United States: Moore v. Fields, 1 Or. 317; Colwell v. Smith, 1 W. T. 92. Petition of householders and legal notice are jurisdictional facts in laying out highway: Thompson v. Multnomah County, 2 Or. 34; Johns v. Marion County, 4 Or. 46. Larceny may be punished by the courts of any county, where the goods are carried by the thief: State v. John- son, 2 Or. 115. State courts may be given authority to punish offense of having counterfeiting tools in possession: State v. Brown, 2 Or. 221. Jurisdictional facts need not be recited in warrant for arrest in civil cases: Norman v. Zieber, 3 Or. 197. Jurisdiction on arrest, in civil cases, depends on affidavit, and, if absent or insufficient, arrest is void: Id. Nptice of contest of election, jurisdictional: IMyers v. Warner, 3 Or. 212. Orders of sale of property in probate proceeding, reciting jurisdiction, are presumed true: Russell v. Lewis, 3 Or. 380. Terminal points must be described with certainty in petition for county road, or no jurisdiction: Johns v. Marion County, 4 Or. 46. Locality of lost stake may be ascertained as well in law as in equity: Lewis v. Lewis, 4 Or. 177. Recital in record of posting of notices to the satisfaction of court in opening road insufficient, and the record must show the facts: State v. Officer, 4 Or. 180. Judgment roll showing want of jurisdiction, proper evi- dence to dispute administrator's sale: Gilmore v. Tay- lor, 5 Or. 89. On application for leave to issue execution on a dormant judgment, the sarne presumption as upon collateral attack: Strong v. Barnhart, 6 Qr. 93. Jurisdiction. 357 Jurisdiction (continued). Notice of intention of city to improve street is jurisdic- tional, and, in its absence from the record, the presump- tiou of regularity provided by the charter does not exist: Van Sant v. Portland, G Or. 395. Judge in vacation has no jurisdiction to try contempt in disobeying order of the court in term: State v. McKin- non, 8 Or. 487. Jurisdiction in habeas corpus is not ousted by admission of prisoner to bail before the return to the writ is made: Pomeroy v. Lappeus, 9 Or. 363. Affidavit is the foundation of jurisdiction in making order for immediate delivery in replevin: Carlon v. Dixon, 12 Or. 144. Exercise of power by a city, to sell real property for delinquent tax, is not an adjudication or the exercise of jurisdiction in a judicial sense: Dowell v. Portland, 13 Or. 248. In laying out streets by a city, all the steps provided by charter are jurisdictional, and must appear regularly taken by the record: N. P. T. Co. v. Portland, 14 Or. 24. This, though charter provides for a presumption of regu- larity in such matters: Id. Guardians' sales, where the record shows no want of juris- diction, are not open to collateral attack, if the plead- ings do not put the jurisdiction in issue: Walker v. Goldsmith, 14 Or. 125^ Homicide on Indian reservation is within federal juris- diction, and rules of common law govern: Shapoon- mash V. United States, 1 W. T. 188. Marine torts, committed on tide-waters, within the boun- daries of a county, are within the jurisdiction of the ^nited States: Smith v. United States, 1 W. T. 262. An offense so committed is also within the jurisdiction nf the territorial court: Id. Territorial courts exercise the combined jurisdiction of the District and Circuit Courts of the United States: Id.; Stevens v. Baker, 1 W. T. 315. Territorial courts have jurisdiction of a murder committed on San Juan Island, pending the settlement of the United States boundary, when the offense was com- mitted, while the convention for joint occupancy was in 358 Jurisdiction. Jurisdiction (continued). force: Watts v. United States, 1 W. T. 288; Watts v. Territory, 1 W. T. 409. Venue is jurisdictional in replevin, but if the sheriff's return shows the property is within the court's jurisdic- tion, the omission in the pleading is corrected: Stiles v. James, 2 W. T. 194. Transcript of record of a Probate Court in Oregon, show- ing that that court had assumed jurisdiction of certain notes, is privia facie evidence that they were in Oregon at the time and within the jurisdiction of such court: McCoy V. Ayres, 2 W. T. 203. Jury and Jury Trial. See Criminal Law; Evidence; Practice. 1. Grand Jury. 2. Eight to Jury Trial. 3. Summoning and Impaneling. 4. Relations of Court and Jury. 5. Instructions. 6. Conduct and Deliberation. 7. Verdict. 1. Grand Jury. Presumed duly sworn as to qualifications to serve, from the language of the record: O'Kelly v. Territory, 1 Or. 51. Challenges to panel are abolished in Oregon. by statute: State V. Fitzhugh, 2 Or. 227. Objection that an attorney employed to as&ist the prose- cution was present before the grand jury when in- dictment was found is no ground for reversal after judgment: State v. Whitney, 7 Or. 386; State v. Jus- tus, 11 Or. 178. Motion to quash the indictment for illegality of grand jury, not considered on appeal, where the facts are not discovered from the record: State v. Anderson, 10 Or. 448. Fact that defendant appeared as a witness before the grand jury, no ground for reversal: Id. Under the constitution, the grand jury must be drawn from the jurors in attendance at a term of court; an act providing for drawing them before the term is void: State v. Lawrence, 12 Or. 297. Jury and Jury Trial. 359 Jury and Jury Trial (continued). Indictment found by such grand jury is invalid, and judg- ment of conviction thereon bad: Id. Where the record shows the impaneling of grand jury void, court should stay the proceedings as soon as its attention is directed thereto: Yelm Jim y. Territory, 1 W. T. 63; Clarke v. Territory, 1 W. T. 68. Irregularities having occurred in selection of grand jury, the court is authorized to discharge same, and have sheriff summon sixteen qualified grand jurors from the by-standers: Id. Where the grand jury have been finally discharged, and it is made to appear to the court that the public inter- ests would be promoted by resummoning them, the court may order sheriff to fill the panel from the by- standers, if all the original jurors cannot be found: Watts v. Territory, 1 W. T. 409. Where the records show that the grand jury appeared in open court, and their foreman, in their presence, pre- sented a true bill properly indorsed, it sufficiently ap- pears that the indictment was found by concurrence of at least twelve jurors: Id. Married Avomen residing with their husbands are compe- tent grand jurors: Rosencrantz v. Territory, 2 W. T. 267; Schilling v. Territory, 2 W. T. 283; Walker v. Territory, 2 W. T. 286. The Code of 1881, prescribing the qualifications of grand jurors, included, besides persons then qualified, those wl'O should afterwards become possessed of the qualifi- cations prescribed: Id. Chapter 183 of Code of 1881 removed the common-law disabilities of a wife as a member of the family, and husband and wife are jointly the head of llie family: ^d. The constitution of the grand jury is not impaired by making married women members thereof: Id. 2. Right to Jury Trial. By consent, jury tdal may be waived, and a referee ap- pointed to take the testimony to be used on the trial ' before the court at chambers: Roy v. Horsley, 6 Or. 382. Reference, without consent, under section 219, Civil Code, 360 ' Jury and Jury Trial. Jui^y and Jury Trial (continued). not unconstitutional, in cases which involve the exam- ination of long accounts: Tribou v. Strowbridge, 7 Or. 15G. Nor is section 29, chapter 50, Miscellaneous Laws (sec. 4093, Hill's A. L.), concerning assessment by County- Court of damages for taking of materials for repair of roads from private lands, unconstitutional: Kendall v. Post, 8 Or. 141. The right, guaranteed by constitution, is the common-law trial by jur}^ and trial for violating city ordinance i.i not within the provisions: Wong v. Astoria, 13 Or. 538. No deprivation of the right that party cannot obtain jury in an inferior court, if provision is made for jury trial on appeal: Id. Parties cannot claim right to jury trial in divorce cases: Madison v. Madison, 1 W. T. 60. There being no Avaiver of jury trial, the court has no au- thority to try an action in which an issue of fact is made: Johnson v. Goodtime, 1 W. T. 484, No right of jury trial in admiralty in a libel case: Phelps V. Steamship City of Panama, 1 W. T. 518. Supplemental proceedings under the Code serve the end of a creditor's bill, and therefore are to be heard and determined by the court without jury: Murne v. Schwa- bacher Bros. & Co., 2 W. T. 130. 3. Summoning and Impaneling. Selection of jury for special term under statute: O'Kelly V. Territory, 1 Or. 51. Presumption that jury was regularly impaneled: Id. Celling of jury from list, instead of drawing from box, not error sufiicient to reverse, where it appears that all the regular panel was so called and exhausted: Hart v. Territory, 1 Or. 122. After discharge of regular panel, court cannot summon new jury against the will of either party: Mosseau v. Vecder, 2 Or. 113. After a jury had been challenged peremptorily, no error to allow challenge to be withdrawn before next juror called: Garrison v. Portland, 2 Or. 123. Resident and tax-payer in city not competent juror in damage case against city: Id. Jury and Jury Trial, 361 Jury and Jury Trial (continued). Nor in action to lay out street and assess damages and benefits: Portland v. Kamm, 5 Or. 3G2. Whether the sustaining or overruling challenge for actual bias is reviewable on appeal, quxre; certainly not un- less all the testimony is in the record: State v. Brown, 7 Or. 186. Who is a by-stander: Id. Objection to juror as not a citizen is waived by failing to challenge at proper time: State v. McDonald, 8 Or. 113. Challenge for actual bias cannot be considered on appeal, unless bill of exceptions shows all the evidence adduced: State V. Tom, 8 Or. 177; Hay den v. Long, 8 Or. 244; McAllister v. Territory, 1 W\ T. 360. Objection that a juror is drawn from a particular panel is an objection to the panel: State v. Dale, 8 Or. 229. Where a full panel is not in attendance, and more than enough to fill the panel are summoned, the objection should be made that a particular juror is not properly summoned: Id. Challenges to the panel have been abolished: State v. Fitzhugh, 2 Or. 227; State v. Dale, 8 Or. 229. Omission of justice to swear jury waived by proceeding to trial and judgment without objection: Griffin v. Pit- man, 8 Or. 342. That a juror had once been convicted of crime is waived by not challenging at proper time: State v. Powers, 10 Or. 145. Actual bias is to be determined by the court in the exer- cise of a sound discretion: State v. Saunders, 14 Or. 300. Reading newspaper account, or general rumor, though leaving juror with an opinion such that it would re- quire evidence to remove, does not necessarily disqual- ify: Id. The act of the legislature assigning Pierce County to the Second Judicial District, from which the juror is drawn, does not divest the prisoner of any rights: Les- chi V. Territory, 1 W. T. 13. Such enlargement of venue is but an enlargement of Pierce County: Id. Record showing the jury was "duly sworn" shows that the proper oath was administered: Id. 362 Jury and Jury Trial. Jury and Jury Trial (continued). Objection to the jury is waived if not taken at the time of impaneling the jury: Clarke v. Territory, 1 W. T. 68. Juror absent from the territory for two years, with fixed intention of returning, is a resident, and qualified: Id, The fact that he voted in another state would not estab- lish his residence out of the territory against his sworn statement of residence and intention: Id. In case of a subdistrict composed of more than one county, the statute requires, upon proper motion and affidavit, the exclusion of jurors from the particular county: McAllister v. Territory, 1 W. T. 360. Adding the words, " and the law as given by the court," to the statutory oath, is not error, since the jury is bound to accept the law as given by the court: Hartigan v. Territory, 1 W. T. 447; Leonard, v. Territory, 2 W. T. 381. Panel of petit jury having been discharged, court is au- thorized to summon a jury to try the cause: Thomp- son V. Territory, 1 W. T. 547. Jury may be impaneled after the first three weeks of the term, and the statute providing that all jury trials shall be within the first three weeks of the term is repealed: Id. The form of oath in this case did not differ materially from that prescribed by the statute, but. the better practice is to follow the form.ula adopted by the legis- lature: Leonard v. Territory, 2 W. T. 381. 4. Relation of Court and Jury. Intention of maker of a writing is a question for the court; if the writing is a part of a transaction consist- ing of extrinsic facts, the whole evidence is for the jury: Winter and Lattimer v. Norton, 1 Or. 42. Whenever there is any evidence tending to prove a fact, the jury must pass upon it; but if there is no evidence tending to prove the fact, the court may so charge: Latshaw v. Territory, 1 Or. 140; State v. Garrand, 5 Or. 216; State v. Whitney, 3 Or. 386; Briscoe v. Jones, 10 Or. 63; Smith v. United States, 1 W. T. 262. Reasonableness of appearances, to justify homicide on ground of self-defense, is a question for jury: Goodall V. State, 1 Or. 333. Jury axd Jury Trial. 363 Jury and Jury Trial (continued). Issues of fraud and mismanagement of directors of corpo- ration submitted to jury in an equity suit: Hedges v. Paquett, 3 Or. 77. Necessity for mooring a boom to the bank of private stream, in an action for trespass, is a question for the jury: Weise v. Smith, 3 Or. 445. Question whether a sale was fraudulent when personal property was left with vendor is a question for jury: Moore v. Floyd, 4 Or. 102; McCully v. Swackhamer, 6 Or. 438. Question for jury whether contract for delivery of sheep had been complied with under the circumstances: Southwell V. Breezley, 5 Or. 143. Probable cause in malicious prosecution; province of court and jury: Glaze v. Whitley, 5 Or. 104. Whether statements made by the assured to life insurance company, contained in his written application for insur- ance, are warranties or representations is to be deter- mined by the court, and not left to the jury: Buford v. N. Y. Life Ins. Co., 5 Or. 334. Presumption of life or innocence affecting legality of a marriage, duty of court and jury: Murray v Murray, G Or. 17. Construction of a writing as evidence of an agreement is for the court, not the jury: State v. Moy Looke, 7 Or. 54; Tolmie v. Dean, 1 W. T. 46. In equity cases, when issues may be submitted to a jury, and the effect of the verdict: De Lashmutt v. Everson, 7 Or. 212; Swegle v. Wells, 7 Or. 222. The degree of the crime as well as the fact of guilt must be left to the jury: State v. Grant, 7 Or. 414. Jury may judge of the genuineness of a pretended copy "5f a lost instrument, when the making of the instru- ment is a fact in issue: Rosendorf v. Ilirschberg, 8 Or. 240. Construction and effect of deeds in evidence must be de- termined by the court: Johnson v. Shively, 9 Or. 333. Privileges and duty of attorneys in addressing the jury; control of the court: Tenny v. Mulvaney, 8 Or. 513; State V. Lee Ping Bow, 10 Or. 27; Long and Spaur v. Lander, 10 Or. 175; State v. Anderson, 10 Or. 448; State V. Abrams. 11 Or. 169. 864 Jury and Jury Trial. Jury and Jury Trial (continued). Relation and province of court and jury in determining question of negligence: Walsh v. Oregon R'y & Nav. Co., 10 Or. 250. Modification of contract of carriage by express company, by changing directions indorsed on package, a question for the jury: Bennett v. Northern Pacific Express Co., 12 Or. 49. Jury must determine the facts, and the court cannot as- sume as proved facts that should be left to the jury: State V. Grant, 7 Or. 414; State v. Mackey, 12 Or. 154; Yarnberg v. Watson, 13 Or. 11. Question whether an incompleted boat is a " vessel " is for the jury, under proper instruction and definition by the court: Yarnberg v. Watson, 13 Or. 11. "Frequenting" an ojjiura den would require more than one visit; how many, it seems, would be a mixed ques- tion of law and fact for the jury: State v. Ah Sam, 14 Or. 347. The existence of an agent's authority is a question of fact; what he may do by virtue thereof is a question of law: Glenn v. Savage, 14 Or. 567. Whether an agent is duly authorized is not a question for the jury: Id. The existence and terms of a treaty should not be sub- mitted to the belief of the jury: Roberts v. Lucas, 1 W. T. 205. 5. Instructions. No error to refuse to instruct on a point to which there is no evidence: Latshaw v. Territory, 1 Or. 140; State v. Glass, 5 Or. 73; Glaze v. Whitley, 5 Or. 164; State v. Brown, 7 Or. 186; Doctor Jack v. Territory, 2 W. T. 131. Jury instructed that plaintiff was entitled to his whole damages, or nothing: Heath v. Glisan, 3 Or. 64. Not to compromise against convictions of truth: Boyd- ston V. Giltner, 3 Or. 118. Jurors are not at liberty to disregard the law under be- lief that they thus can do justice: Davis v. Mason, 3 Or. 154. Right to have instructions given may be limited by rea- sonable rules of court: Carney v. Barrett, 4 Or. 17l. Jury and Jury Trial. 365 Jury and Jury Trial (continued). In what manner court may instruct jury to bring in ver- dict in certain form: Farley v. Parker and Sutherland, 4 Or. 269. Abstract propositions of law, or hypothetical case on which the jury will not have to pass, need not be given, and refusal no error: Shattuck v. Smith, 5 Or. 125; Espy V. Fenton, 5 Or. 423; State v. Brown, 7 Or. 186; Rohr V. Isaacs, 8 Or. 451; Schmieg v. Wold, 1 W. T. 472. Court is justified in instructing the jury that there is no evidence on a certain point: Latshaw v. Territory, 1 Or. 140; State v. Garrand, 5 Or. 216; State v. Whitney, 7 Or. 386; Briscoe v. Jones, 10 Or. 63; Smith v. United States, 1 W. T. 262. Permitting jury to take written instructions to jury-room, condemned as bad practice: Smith v. Lownsdale, 6 Or. 78. But in Washington Territory it is not error to allow them to do so: Edwards v. Territory, 1 W. T. 195. Court may append explanation in writing to instruction requested: Knapp v. King, 6 Or. 243. Error to submit a question of fact to which there is no evidence: Morris v. Perkins, 6 Or. 350; Hayden v. Long, 8 Or. 244; Marx v. Schwartz, 14 Or. 177; Breon V. Henkle,' 14 Or. 494; Glenn v. Savage, 14 Or. 567. Refusal to give special instruction substantially included in general charge given, no error: State v. Brown, 7 Or. 186. . Not error to omit to instruct on question pertinent, with- out the attention of the court is called to the matter: Page V. Finley, 8 Or. 45; Hurst v. Burnside, 12 Or. 520. Refusal to give instructions asked not presumed error; record must show them to have been proper; no error to refuse, when not pertinent: Richards v. Fanning, 5 Or. 356; Rosendorf v. liirschberg, 8 Or. 240; City of Seattle v. Buzby, 2 W. T. 25. Instruction upon abstract questions not relevant, though erroneous, not ground for reversal where the record justifies the inference that no injury was occasioned: Salmon v. Olds and King, 9 Or. 488; Yelm Jim v. Territory, 1 W. T. 63. 366 Jury and Jury Trial. • Jury and Jury Trial (continued). Otherwise, where it manifestly tends to mislead the jury as to the real issues: Willis v. Or. R'y & Nav. Co., 11 Or. 257; Breon v. Henkle, 14 Or. 494. An erroneous instruction without prejudice is no ground for reversal: Salmon v. Olds and King, 9 Or. 488; Briscoe v. Jones, 10 Or. 63; Strong v. Kamm, 13 Or. 172; Brown Bros. & Co. v. Forest, 1 W. T. 201. Where there are several distinct issues, it is error to in- struct to find a verdict in favor of one party if the jury determine a particular one of the issues in his favor: Kearney v. Snodgrass and Minor, 10 Or. 181. Giving or refusing to give instructions not presumed error, where bill of exceptions does not purport to show all the evidence: Richards v. Fanning, 5 Or. 350; State v. Lee Yan Yan, 10 Or. 365; Yelm Jim v. Territory, 1 W. T. 63; Brown Bros. & Co. v. Forest, 1 W. T. 201; Thompson v. Territory, 1 W. T. 548; Or. R'y & Nav. Co. V. Galliher, 2 W. T. 70. Objection to generality of instruction applicable to some of the issues, as to burden of proof, not being made, it is presumed on appeal to have been applied to proper issues only: Rogers v. Wallace, 10 Or. 387. Instructions as to the effect of a written contract are to be reviewed by an examination of the writing: Id. No error to refuse an instruction asked, if jury are prop- erly instructed on same subject: State v. Anderson, 10 Or. 448; Seattle v. Buzby,'2 W. T. 25; Brewster v. Baxter, 2 W. T. 135. The entire charge of the court must be considered to ascertain the meaning and effect of any particular portion excepted to: Id.; Brown v. Forest, 1 W. T. 201. Error to instruct a jury not to regard mere slight vari- ances not affecting the credit of witnesses: State v. Swayze, 11 Or. 357. Irrelevant instructions must be properly excepted to, or there is no ground for reversal: Kearney v. Snodgrass, 12 Or. 311; Brown Bros. & Co. v. Forest, 1 W. T. 201; Smith V. United States, 1 W. T. 262. How exceptions should be taken: Richards v. Fanning, 5 Or. 356; Murray v. Murray, 6 Or, 17; Kearney v. Snodgrass, 12 Or. 311. Jury and Jury Trial. 367 Jury and Jury Trial (continued). Court cannot instruct jury to bring in a certain verdict: Smith V. Shattuck, 12 Or. 3G2; State v. Grant, 7 Or. 414; State v. xAIackey, 12 Or. 154. Instruction assuming a fact which should be left to the jury is error: Yarnberg v. Watson, 13 Or. 11. Where two contracts are in evidence, an instruction asked, applicable to one of them, ignoring the existence of the other, is properly refused: Krewson & Co. v. Purdom, 13 Or. 5G3. Instruction outside of the issues, but in favor of the party compLaining of it, is no ground for reversal: Moorhouse V. Donaca, 14 Or. 430. Where a fact has been established on the trial beyond controversy, the court may assume it as a fact in the case: Edwards v. Territory, 1 W. T. 195. Unless evidence be given on a fact put in issue by the pleadings, no occasion arises for instruction concerning the same: Brown Bros. & Co. v. Forest, 1 W. T. 201. Statement by the judge in giving instructions that a cer- tain issue " is the important point in the case, in fact the only point," taken in connection with other parts of his charge, could not have misled the jury: Schmieg V. Wold, 1 W. T. 472. No ground for reversal that an instruction was not given in the language asked, when such failure has not worked injury: Seattle v. Buzby, 2 W. T. 25. Incorrect special instruction is not cured by correct gen- eral instruction on the same subject: Baxter v. Waite, 2 W. T. 228. If the court erred in admitting certain evidence, but in the charge to the jury withdrew the evidence from their consideration, the error was cured: P. S. I. Co. v. Worthington, 2 W. T. 472. 6. Conduct and Deliberation. Affidavits of jurors will not be received to impeach their verdict: Cline v. Broy, 1 Or. 89; Newby v. Territory, 1 Or. 163; Or. Cas. R. R. Co. v. Or. Steam Nav. Co., 3 Or. 178. Duties of jurors in viewing premises stated: Or. Cas. R. R. Co. v. Baily, 3 Or. 1G4. Too late after verdict to complain that jury did not have 368 Jury and Jury Trial. Jury and Jury Trial (continned). full view: Or. Cas. R. R. Co. v. Or. Steam Nav. Co., 3 Or. 178. Permitting jury to take written instructions to the jury- room, condemned as bad practice: Smith v. Lownsdale, 6 Or. 78. See Edwards v. Territory, 1 W. T. 195. Purchasing newspaper by juryman in criminal case, not containing anything improper in regard to the case, does not prejudice the defendant's rights: State v. Brown, 7 Or. 186. Omission to provide for the presence of the accused or his counsel when jury view the premises in a homicide case is no error, where the privilege was not asked: State V. Ah Lee, 8 Or. 214. A ruling of the trial court refusing new trial on account of a juror's drinking intoxicating liquor during the trial will not be considered on appeal: State v. Becker, 12 Or. 318. Attention of the court must be called to improper com- ments by a party in the presence of a juror for the objection to be available on appeal, and refusal to grant new trial therefor is not reviewable: Tucker v. Flour- ing Mills Co., 13 Or. 28. Jury may take written charge and the statute to the jury- room: Edwards v. Territory, 1 W. T. 195. Not error to place the jury in charge of a sworn officer of the court, who has been a witness on the trial: Id. Allowing one or more jurors to retire from the jurj^'oom for a necessary purpose, under supervision of the officer, is not regarded as a separation of the jury: Id. Verdict arrived at by resort to chance or lot is contrary to the statute: Goodman v. Cody, 1 W. T. 329. But resorting to aritlimetical average as preliminary means of ascertaining the amount, which is afterwards agreed on, is not misconduct, such as should set the ver- dict aside: Id. The word " chance " in the statute is used in its popular sense, and has not technical meaning: Id. While separation of jury, with consent of the accused and his counsel, is of doubtful propriety in criminal cases, it is not error: Hartigan v. Territory, 1 W. T. 447. Where the accused and his counsel gave consent to such Jury and Jury Trial. 369 Jury and Jury Trial (continued). separation, they should be estopped from objecting thereto on appeal: Id. Jury may be permitted to carry a hat and garment, in- troduced in evidence, to the jury-room: Doctor Jack r. Territory, 2 W. T. 101. The word "papers" in the statute allowing papers ad- mitted in evidence to be taken by the jury to the jury- room is to be interpreted to include exhibits generally:; Id. 7. Verdict. Return of verdict into court, recited by the record, is pre- sumed to mean that it was rendered in open court:. O'Kelly V. Territory, 1 Or. 51. Accused presumed lo be present in court when verdict wys returned, when record is silent: Id. Verdict cannot be impeached by affidavit of jurors: Cline V. Broy, 1 Or. 89; Newby v. Territory, 1 Or. 163; Or. Gas. R. R. Co. v. Or. Steam Nav. Co., 3 Or. 178. Jury need not assess the value of the property stolen in a, larceny case when the property is alleged to be of a spe- cific value: Howell v. State, 1 Or. 241. Verdict in forcible entry and detainer case, held sufficient:: Altree v. Moore, 1 Or. 350. Recommendation of defendant to mercy is not inconsis- tent with verdict of guilty: State v. Fitzhugh, 2 Or. 227. In controverted issues of fact, the finding by the verdict is presumed correct: Bybee v. Burbank, 2 Or. 295. Special verdict defined to be a finding of the facts only,, leaving the judgment to the court: Dray v. Crich, 3 Or.. 298. General verdict, with inconsistent limitations added, will not stand as general verdict: Id. Every material allegation of complaint presumed found true by jury, after general verdict in favor of the plain- tiff: Torrence v. Strong, 4 Or. 39. Error to receive verdict in absence of the defendant in a felony case: State v. Spores, 4 Or. 198. Verdict in action to lay out street and assess damages and benfits must state each separately: Portland v. Kamm, 5 Or. 362. When special findings are inconsistent with general ver- Or. Dig.— 24 370 Jury and Jury Trial. Jury and Jury Trial (continued). diet, former control: Rolfes v. Russel, 5 Or. 400; Willey V. Morrow, 1 W. T. 474. In equity cases on appeal, verdict is not to be disregarded, unless clearly erroneous: De Lashmutt v. Everson, 7 Or. 212; Swegle v. Wells, 7 Or. 222. Verdict is presumed as broad as the issues to be passed upon: Reed v. Gentry, 7 Or. 497. In replevin, a verdict for damages only, without finding ownership or value, will not sustain judgment: Jones v. Snider, 8 Or. 127. Where statute requires special findings, general verdict is not presumed to include: Id. Where two defendants, jointly charged with conversion, answer, and a general verdict against them is found, judgment must be given against both: Cauthorn v. King, 8 Or. 138. And in such case, if but one of the defendants has appealed from Justice's Court, the Circuit Court will have juris- diction of both, if both appear and defend, and a general verdict binds both: Id. Submission of special questions discretionary with the court, and may be withdrawn at any time before ver- dict: Rohr V. Isaacs, 8 Or. 451. Verdict of a sheriff's jury under section 284 of the Code (sec. 287, Hill's A. L.), operates as a full indemnity to him as against the claimant of goods taken on execution: Remdall v. Swackhamer, 8 Or. 502; CajDital Lumbering Co. V. Hall, 9 Or. 93; Hexter v. Schneider, 14 Or. 184. After verdict against him, claimant cannot maintain re- plevin against the sheriff": Id. Informal statement of facts in pleading is cured by ver- dict: Houghton and Palmer v. Beck, 9 Or. 325; Aiken Coolidge, 12 Or. 244; Andros v. Childers, 14 Or. 447. But verdict does not supply a fact not pleaded: Weiner v. Lee Shing, 12 Or. 276. Verdict evidently finding the fact correctly, error in sub- mitting a question to the jury, which was within the province of the court, will not avail on appeal: Johnson V. Shively, 9 Or. 333. Where the error in the amount of the verdict was incon- siderable and ascertainable, on appeal the judgment Jury and Jury Trial. 371 Jury and Jury Trial (continued). was not reversed, on respondent's deducting the excess and paying costs: T. & McK. v. M. & B., 9 Or. 405. In criminal case, it is not necessary that prisoner's coun- sel be present when the verdict is received: State v. Lee Ping Bow, 10 Or. 27. Record reciting presence of accused at beginning of trial, and no adjournment being noted, it is presumed he was present when verdict was rendered: State v. Cartwright, 10 Or. 193. Form of verdict in action to condemn land for railroad: Or. R'y Co. v. Bridwell, 11 Or. 282. In criminal actions for rioting: State v. Louey and Loo Wan, 11 Or. 326. In replevin, failure to allege place where the goods were Uiken is cured by verdict: Kirk v. Matlock, 12 Or. 319. Court has no power to direct a jury to bring in a particu- lar verdict: Smith v. Shattuck, 12 Or. 362. Excessive verdict for damages, no ground for reversal on appeal; and refusal of trial court to set aside such ver- dict is not reviewable: Nelson v. Or. R'y etc. Co., 13 Or. 141. Verdict in replevin in favor of party in possession need not assess value: Prescott v. Heilner, 13 Or. 200. In replevin, failure to find damages does not vitiate a ver- dict; it is presumed that the jury found no damage sus- tained: Id. General verdict returned, in which a line is drawn through the name of one of the defendants, in the title of the cause, is good as against the other defendant: French v. Cresswell, 13 Or. 418. Refusal of court to submit special questions for findings thereon is not reviewable, and is discretionary: Swift v. Mttlkey, 14 Or. 59. Verdict of a jury called by officer to try the question of title of goods attached operates as a protection to the officer, but does not conclude the claimant from bring- ing replevin against purchaser: Hexter v. Schneider, 14 Or. ISO. Defective statement of a good defense will be aided by ver- dict: Andros v. Childers, 14 Or. 447. Some counts in indictments being good and some bad. 372 Jury and Jury Trial. Jury and Jury Trial (continued). verdict is presumed to be based on the good counts: Leschi v. Territory, 1 W. T. 13. From the record, prisoner presumed to have been present when verdict returned: Id. Under indictment for crime of high grade, verdict may be found of guilty of a lesser crime necessarily included: Clarke v. Territory, 1 W. T. 68. The court is always deemed open for purpose connected with the jury, and can receive verdict after adjournment and before the meeting of the court at the hour speci- fied in the order of adjournment: Edwards v. Territory, 1 W. T. 195. Verdict arrived at by resort to chance or lot is contrary to the statute: Goodman v. Cody, 1 W. T. 329. After having retired a second time for deliberation upon corrected instructions, given by the court after the jury first returned into court with a verdict, but before such verdict was received by the court, the jury is presumed to have returned their verdict pursuant to the corrected instructions: Doctor Jack v. Territory, 2 W. T. 101. Justice of the Peace. See Appeal and Error; Forcible Entry and Detainer; Jurisdiction. Statute of 1862, increasing jurisdiction from $100 to $250, constitutional: Noland v. Costello, 2 Or. 57. A justice must act as court of inquiry only, and bind over defendant to Circuit Court, in felony cases: Williams V. Shelby, 2 Or. 144. City recorder may be made ex officio justice of the peace within city limits: Ryan v. Harris, 2 Or. 175. City recorder of Salem is ex officio justice of the peace within city limits: Craig v. Mosier, 2 Or. 323. 5ut has no jurisdiction where process is served outside the city: Id. Appeal does not lie from judgment less than twenty dol- lars, though greater sum is in coMroversy: Stoll v. Hoback, 2 Or. 225. Justice need not order repaid to judgment debtor "earn- ings" exempt, voluntarily paid in by a garnishee: Opitz v. Winn, 3 Or. 9. Keed not make an order not directly authorized, by stat- ute: Id. Justice of the Peace. 373 Justice of the Peace (continued). Filing transcript from Justice's Court on appeal is not suilicient docketing of judgment to allow execution against land: Chapman v. Kaleigli, 3 Or. 34. Certificate of justice to copy of complaint, as a true copy- thereof, sufficient to authorize its service, with sum- mons: Marooney v. ^IcKay, 3 Or. 372. Transcript, and not mere abstract of judgment, must be filed with county clerk to give lien on realty: Dearborn V. Pat ton, 4 Or. 58. Police judge of Portland may be given powers of justice in civil and criminal cases within the city: State v. Wiley, 4 Or. 184. City recorder of Corvallis is ex officio justice of the peace, and appeal lies from his judgments: Sellers v. Corval- lis, 5 Or. 273; Corvallis v. Stock, 12 Or. 391. Jurisdiction once obtained over the subject-matter con- tinues until final disposition: Knapp v. King, 6 Or. 243. After rendering judgment void for defect in obtaining ju- risdiction of person of defendant, justice may issue alias summons, and proceed to judgment: Id. May, after rendering but not recording judgment at length, subsequently record the same: Id. Statute creating an offense and affixing penalty to be re- covered in Justice's Court gives justice exclusive juris- diction of the oflense: Multnomah Co. v. Knott, 6 Or. 279. Justice has jurisdiction in forcible entry and detainer to exclusion of Circuit Court: Thompson v. Wolf, C Or. 308. May take case under advisement without adjourning to a day certain, and subsequently render judgment: Saun- ders V. Pike, G Or. 312. Judgment entered as of the 6th, when rendered on the 14th of April, is not void in the absence of fraud: Id. Omission to* swear jury is waived by parties proceeding to trial and judgment without objecting: Griffin v. Pit- man, 8 Or. 342. No right after rendering judgment to set it aside and grant new trial: Id. Judgment rendered for want of answer, docket not showing that defendant was given an hour to appear, will be re- versed on writ of review: Gaunt v. Perkins, 8 Or. 354. 374 Justice of the Peace. Justice of the Peace (continued). Oral reply to counter-claim having been made, but not en- tered in docket, Circuit Court may on appeal allow written reply presenting same issues: Rohr v. Isaacs, 8 Or. 451. Appeal does not lie from judgment of city recorder of La- fayette when sitting as recorder, as distinguished from justice of the peace: Lafayette v. Clark, 9 Or. 225. Strict formality is not required in allegations in pleadings before justice: Houghton and Palmer v. Beck, 9 Or. 325. Justice's Court has jurisdiction, though service is had out of the precinct, but within his county, without re- gard to the place of residence of the parties: Taylor v. Jenkins, 11 Or. 274. Summons may be served by constable anywhere in the county: Id. Justice has power to adjudge costs against defendant found guilty of a misdemeanor, and imprison him in default of payment of the same: Crowley v. State, 11 Or. 512. When the title to real property comes in question by de- fense or plea, justice is ousted of jurisdiction: Sweek v. Galbreath, 11 Or. 516; Aiken v. Aiken, 12 Or. 203. Where plaintiff, instead of justice, makes the indorsement of directions to the officer on an affidavit for immediate delivery in replevin, the bond is not void;- sureties are liable: Carlon v. Dixon, 12 Or. 144. Justice has jurisdiction in a proper case in replevin, irre- spective of tlie place of the taking: Kirk v. Matlock, 12 Or. 319. Has no jurisdiction to revive a justice's judgment to make it a lien on real property: Glaze v. Lewis, 12 Or. 347. Judgment cannot be set aside in equity for intimidation of witnesses of a party during trial by a casual broil oc- curring during the trial in the Justice's Court: Scoggin v. Hall, 12 Or. 372. The amount claimed, and not the amount recovered, is the test by which the jurisdiction of a justice of the peace is determined: Ebey v. Engle and Hall, 1 W. T. 72; con- tra, Bagley v. Carpenter, 2 W. T. 19. Becords of justice being distroyed before transcript was certified on appeal, the appellant is entitled to have the Laches. 375 Justice of the Peace (continued). cause docketed in the District Court, to show the facts and supply the missing records: Mullen v. Mullen, 1 W. T. 192. The Justice's Court is not the proper court to supply the destroyed records: Id. On a claiu] filed in a Justice's Court against S. Baxter & Co., summons issued to S. Baxter and A. M. Brooks, and both appeared and pleaded; held, that the defect of the parties appearing on the face of the claim is waived : Baxter & Co. v. Scoland and Jensen, 2 W. T. 8G. Whether the absense of a venue in an affidavit sworn to before a justice is a fatal omission, qusere: McCoy v. Ayres, 2 W. T. 203. Kidnaping. Acquittal of assault and battery, no bar to prosecution for kidnaping: State v. Stewart, 11 Or. 52; S. C, 11 Or. 238. Laborers' Liens. See Liens. Laclies. Motion to amend decree, too late after seventeen months' delay, unless excuse is shown: Chapman v. Wilber, 5 Or. 299. Delay of thirteen years in prosecuting equitable claim, where due diligence is required, with sufficient knowl- edge to be put on inquiry, is unreasonable: Weiss v. Bethel, 8 Or. 522. When a condition precedent remains unperformed by one party to a contract, laches cannot be imputed to the other party: Richards v. Snider, 11 Or. 197. Where time is not of the essence of the contract, and the plaintiff is not guilty of laches, mere lapse oi" time will Hot prevent granting relief by specific performance: Richards v. Snyder and Crews, 11 Or. 501. Delay in obtaining settlement and allowance of bill of exceptions, unless caused by the appellant, will not prejudice his rights: Ah Lep v. Gong Choy, 13 Or. 205. Minor, on coming of age, must attack guardian's sale for fraud or want of jurisdiction within a reasonable time, or he will be presumed to waive all objections: Walker V. Goldsmith, 14 Or. 125; Brazee v. Schofield, 2 W. T. 209. 376 Laches. Laches (continued). Delay of time in bringing suit to set aside a decree for fraud is usually no bar to relief, unless the party had knowledge of the fraud: Sedlak v. Sedlak, 14 Or. 540. But knowledge, or means of knowledge so that the party ought to have known, make it necessary for party to sue promptly, or be deemed guilty of laches: Id. So, when thirty years have elapsed, and in the mean time the rights of parties have intervened and the party has been enjoying the benefit of the decree, the relief will be barred: Id. Land Laws. See Public Lands. Landlord and Tenant. See Forcible Entry and Detainer. When the day and month, of the beginning of the term of a lease, is left blank, term was held to run from last day of the year: Huffman v. McDaniel, 1 Or. 259. Tenant has no remedy against landlord for injury from ill repair of building, unless landlord has agreed to re- pair: Kahn v. Love, 3 Or. 206. Tenant cannot make repairs at expense of landlord: Id. Agent in possession for principal has no such possession as to be personally liable for rent under statute: Stew- art V. Perkins, 3 Or. 508. Relation of landlord and tenant, express or implied, must be shown in order to sustain action for use and occupa- tion; otherwise, remedy is ejectment: Espy v. Fenton, 5 Or. 423. Lease not describing premises is void for uncertainty, and cannot be aided by parol: Noyes v. Stauff, 5 Or. 455? Leasing for two years by parol, not admissible to prove lease for one year, good under statute of frauds, on fail- ure to prove written lease alleged: Id. Parol lease for life, accompanied by possession and pay- ment of rent, creates a tenancy from year to year, and must be determined by notice to quit: Garrett v. Clark, 5 Or. 464. So, a lease for three years, not in writing: Williams v. Ackerman, 8 Or. 405. Parol agreement subsequent to the leasing, to excuse pay- ment of rent provided in written lease, must have been intended and accepted in lieu of original lease: Watson V. Janion, 6 Or. 137. Landlord and Tenant. 377 Landlord and Tenant (continued). Surrender and acceptance thereof extinguish liability to pay rent subsequently: Bush v. Smith, G Or. 316. Surrender may be by express consent or implied by law, but will not be implied merely from delivery of keys by tenant to landlord: Id. Accepting possession, and reletting to other tenants, oper- ates as a consent to the surrender: Id. Lease is not a conveyance; it is a chattel interest: Ed- • wards v. Perkins, 7 Or. 149. A covenant for quiet enjoyment is implied in a lease for years: Id. Lease, with right of immediate possession, etc., gives lessee the emblements, unless reserved; and express words add nothirig to the right thereto: Id. The rule that a tenant cannot dispute his landlord's title binds the successors of the first tenant: Jones v. Dove, 7 Or. 467. Parol promise, without consideration, for future leasing for term of years, gives promisee no rights, though he has possession obtained without request of promisor: Pulse V. Ilamer, 8 Or. 25L Lease reserving part of crop as rent makes landlord and tenant co-owners of crop, and the tenant cannot sell the part so reserved: Cooper v. McGrew, 8 Or, 327. Lessee, under verbal lease for three years, going into possession and paying rent, lease becomes a tenancy from year to year, which can only be terminated by either party by notice: Williams v. Ackerman, 8 Or. 405. Landlord may reserve crops raised by tenant as his prop- erty, by the terms of the lease, until rent is paid: Fox ^os. & Co. v. McKinney, 9 Or. 493. Such lease is not a chattel mortgage: Id. In construing such lease, the intention of the parties in regard to such reservation must govern: Id. Destruction of premises by fire does not release obligation to pay rent when: Harrington v. Watson, 11 Or. 143. Where a room in a building is leased, and the building is afterward destroyed, the relation of landlord and ten- ant ceases: Id. Such tenant, after the building is destroyed, has no right 378 Landlord and Tenant. Landlord and Tenant (continued). to move another building on the land, and hold posses- sion: Id. Complaint in forcible entry and detainer need not aver service of notice to quit: Chung Yow v. Hop Chung, 11 Or. 220. Service of notice to quit may be proved by parol: Id. Lessee may enter, under a valid lease, at any time during the term: Id. Execution of a valid lease is a complete leasing, even be- fore entry: Id. Posting of an offer to lease, which is accepted by a bid in writing, agreed to by the lessor, held a valid leasing: Id. Complaint that D. (a third person) rented to defendant, who promised to pay rental to plaintiff, states a good cause of action: Schneider v. White, 12 Or. 503. Material and substantial alteration of a building by tenant is waste: Davenport v. Magoon, 13 Or. 3. Privilege in lease to alter does not justify tearing down and building a new, though better, building: Id. Defendant, a mere intruder, having had the use of prop- erty held by plaintiff under color of title, is liable to the latter for the value of such use: Blumberg v. IMcNear & Co., 1 W. T. 141. Lease for a term of years, tenant to make all necessary repairs, damages by the elements excepted, imposes on landlord the obligation to rebuild buildings destroyed by fire: Hadlan v. Ott, 2 W. T. 1G5. Where in suit by tenant for damages for failure to rebuild in such case the lease is admitted, the tenant is entitled on the pleadings to at least nominal damages: Id. Land-of5.ce of the United States. See Public Lands. Land Patents. See Public Lands. Larceny. Verdict need not assess value of the property stolen when the indictment alleges a value: Howell v. State, 1 Or. 241. Offense committed without the state continues and accom- panies the stolen property: State v. Johnson, 2 Or. 115. May be tried in any county into which the property is brouglit by the offender: Id. Larceny from the person includes lesser crime of simple larceny: State v. Taylor, 3 Or. 10. Larceny. 379 Larceny (continued). Larceny of belt from mill in custody of sheriff under at- tachment: State V. Cornelius, 5 Or. 4G. On compromise of larceny under the statute, no more than the value of the property and expenses can be exacted: Saxon V. Hill, G Or. 388. Larceny of horse, saddle, and bridle at same time and place, the property of the same person, is but one of- fense: State V. McCormack, 8 Or. 236. Conviction on indictment for taking the saddle and bridle bars prosecution for larceny of the horse: Id. Taking overpayment, concealing the mistake, and appro- priating the money with intent to defraud the owner, is larceny: State v. Ducker, 8 Or. 394. Indictment using singular for plural verb, but evidently charging all the defendants with the crime, is sufficient: State V. Lee Ping Bow, 10 Or. 27. "Stealing from and on the person," etc., in indictment, " and on " is mere surplusage: Id. Evidence that the person robbed had money, shortly be- fore the alleged theft, of the same amount as was after- wards found on the accused, is admissible: Id. Under section 552 (sec. 1763, Hill's A. L.), indictment alleging that defendant " feloniously took and carried away" is sufficient, without using the word "steal": State V. Lee Yan Yan, 10 Or. 365. Branding and returning to the range cattle apparently ownerless raises no presumption of criminal intent: State V. Swayze, 11 Or. 357. Natural marks on cattle, though serving to identify them, arc no indication of the ownership: Id. The only presumption arising from the possession of prop- erty recently stolen, is one of fact, not law: State v. ^Hale, 12 Or. 352. An indictment which charges stealing, at same time and place, a horse, the property of one M., and another horse, the property of - — , charges but one offense: Territory v. Ileywood, 2 W. T. 180. If such indictment be objectionable as double, the failure - to object until after verdict is a waiver: Id. Instruction that, if the name of the owner of the property is unknown to the jury, they may assume that it was 380 Larceny. Larceny (continued). unknown to the grand jury at the time the indictment •was found, is not error: Id. Law of the Case. See Stare Decisis. Legal propositions which have arisen and been decided on former appeal, whether correctly decided or not, be- come the law of the case, so far as applicable to the facts developed on subsequent trial: Powell v. D, S. & G. R. R. Co., 14 Or. 22. But the law of the case does not apply to the facts, but only to the law: Bloomfield v. Buchanan, 14 Or. 181. And when new evidence has altered the facts, the law will be applied to the new facts as they appear: Id. Latent Ambiguity. See Evidence. Laws of the Territory. See Admiralty; Constitutional Law; Courts; Criminal Law; Jurisdiction. Laws of the United States. See Admiralty; Constitu- tional Law; Courts; Criminal Law; Jurisdiction. Leases. See Landlord and Tenant. Legacies. See Administration; Wills. Legatee, being successor in interest in the subject-matter of a suit, may be substituted as plaintiff on death of the latter under section 37 of the Code (sec. 38, Hill's A. L.): Murray v. Murray, 6 Or. 26. Bequest, "to be given to him when he is twenty- two years of age," is a vested legacy, and the legatee's representa- tive takes if he dies before that age: Warner v. Hera- bree, 8 Or. 118. Bequest of residue of estate to wife for her absolute use and control, etc., during life, held to confer "use," but not the consumption, of the estate: Leahy v. Card well, 14 Or. 171. Residue defined; it is ascertained when final account is presented and allowed and residuary legatee is then en- titled to take: Id. Such legatee is not chargeable with interest on notes given to the executor for funds belonging to the estate, after final settlement: Id. Legislature. See Constitutional Law; Statutes. Letters. See Evidence; Jury and Jury Trial. Levy. See Attachments; Executions, and Proceedings Sup- plemental; Taxation. Liens. 381 Libel. See Admiralty; Slander and Libel. Licenses. See Dedication; Easements; Liquor Laws. License of brokers, who are not brokers within the charter of city of Portland: Portland v. O'Neill, 1 Or. 218. Money paid into county treasury for license cannot be recovered in action for money had and received on re- fusal of the County Court to grant a license: Trainor V. Multnomah Co., 2 Or. 214. Burden of proof is on the defendant to show that he is licensed, in proceedings against him by indictment: State V. Cutting, 3 Or. 260. House kept for public dancing simply is not a hurdy- gurdy dance-house, requiring a license under the stat- ute of 1864 (sec. 3646, Hill's A. L.): State v. Tillcy, 9 Or. 125. Permissive use of a way by a portion of a community is a license, not a dedication: Smith v. Gardner, 12 Or. 221. License by shore-owner to float logs down a stream con- fers no greater right on licensee than he would have without it if the stream is navigable: Haines v. Welch, 14 Or. 319. Liens. See Admiralty; Boats and Vessels; Criminal Law; Judgments; Mortgages; Municipal Corporations. L Mechanics' Liens. 2. Other Liens. 1. Mechanics' Liens. Repeal of a law by a new law after lien is acquired does not divest the lien: Steamer Gazelle v. Lake, 1 Or. 119. Proceedings to enforce should conform to the new law: Id. Overseer who also performs manual labor is entitled to lien for all his services: Willamette Falls etc. Co. v. ^eraick, 1 Or. 169. A lien attaches to mill for labor on dam and breakwater belonging thereto: Id. Claims for anything but labor or materials are non-lien- able: Id. Complaint must state where and when the labor was per- • formed: Willamette Falls etc. Co. v. Smith, 1 Or. 171. Apportionment of moneys under boat lien law of 1851 among lienors: In the Matter of Moore, 1 Or. 179. Suit for materials under lien law of 1851 must be brought 382 Liens. Liiens (continued). within one year: "Willamette Falls etc. Co. v. Perrin, 1 Or. 182. What sufficient summons in action to enforce a mechan- ic's lien: Willamette, Falls etc. Co. v. Riley, 1 Or. 183. Rights are fixed by law in force when contract was made; and may be enforced under law existing at the time of suit: Id. Notice of intention to hold lien must state the amount of indebtedness claimed: Id. Lien attaches under the statute at time of commencement of the building: Id. Interest may be included in the demand, and the lien covers whole amount: Id. Lien does not include ground as well as the building, un- less complaint alleges defendant owns the same: Id. Lien claimants are estopped from denying notice of a prior unrecorded mortgage recited in owner's title deed: Holmes v. Ferguson, 1 Or. 220. Under act of 1853 lien begins from time of filing notice, and then may relate back to commencement of the building: Ritchey v. Risley, 3 Or. 184. A sale on foreclosure of such lien under the act passes title free from all liens created after the commencement of the work: Id. Proceedings to foreclose must be commenced within one year after filing notice: Coggan v. Reeves, 3 Or. 275. An action to foreclose must commence by filing complaint: Id. Lien-holder made defendant in a suit because subsequent, must still pursue statutory remedy, and foreclose by fil- ing complaint: Id. Complaint should show contract was made with owner or his agent: Marooncy v. ^IcKay, 3 Or. 372, Lumber manufacturing corporation cannot hold lien for work done on a building: D. L. & M. Co. v. W. W. M. Co., 3 Or. 527. Where lien claimed by such corporation was for lumber and labor, and complaint did not segregate, whole lien void: Id. Lien attaches only to building on which the work was done, or the material furnished, and not to others occu- pied by defendants: Id. LiEina. 883 Liens (continued). Complaint must allege that notice was filed in pursuance of the statute: Id. The remedy is created in derogation of the common law, and ought to be strictly construed: Id.; Kendall v. Mc- Farland, 4 Or. 292. Right to fde lien is not assignable, but when perfected it may be assigned: Brown v. Harper, 4 Or. 89. Execution may issue to sell the premises on judgment to enforce lien: Kendall v. McFarland, 4 Or. 292. Liens have priority over all liens after commencement of the building, but statute must be strictly complied with: Id. In action to enforce, it should appear when building waa commenced: Id. Judgment is a lien from time it was docketed, when the time the building was commenced does not appear by the judgment roll: Id. Lien for material furnished cannot be enforced against United States revenue cutter in state court: Goldsmith V. The Revenue Cutter, 6 Or. 250. A boat, under the lien law, section 17, chapter 13, Miscel- laneous Laws (c. 55, tit. 3, Hill's A. L.), must be a complete vessel: Korthup v. The Pilot, 6 Or. 297 . Material-men, who furnish material to a person having a contract to build and deliver a part of a boat, have no lien on the boat when completed by the contractors: Id.; Waddell and Miles v. Steamer Daisy, 2 W. T. 76. Description in a notice must be as definite as in a deed; notice held insufficient: Runey v. Rea, 7 Or. 130. Lien waived by taking mortgage on same property: Trul- linger v. Kofoed, 7 Or. 228. Right of subsequent lienors, on foreclosure of a mortgage on the whole of the premises, to have a building thereon sold and the proceeds applied to their liens: Inverarity V. Stowell, 10 Or. 261. Act of 1874 did not change common-law rule that build- ing erected becomes part of the freehold immediately: Id. Evidence held to sustain finding that notice was served after building was completed: McGuire v. Logus, 11 Or: 233. 384 Liens. Liens (continued). Under act of 1874, in the absence of written contract, no lien attached, unless written memorandum of the terms of the contract for the construction is refused: Tatum V. Cherry, 12 Or. 135. Machinist has no lien on building for machinery and re- pairs, furnished in the usual course of trade, without contract: Id. Lien does not attach to public property, in the absence of express statutory provision: Lumbering etc. Co. v. School District, 13 Or. 283. Cannot be acquired or enforced against public school building: Id. The words " over and above all payments and offsets," used in the statute, need not be quoted in the notice; sufficient if the fact appear that the claim is due and its amount is stated: Whittier, Fuller, & Co. v. Blakely, 13 Or. 546; Baxter v. Smith, 2 W. T. 97; contra, Wheeler v. Blakely, 2 W. T. 71; but see Merchant v. Humeston, 2 W. T. 433. Under the Oregon act of 1874, the lien attached when the material is furnished, provided notice to the owner is subsequently given: Whittier, Fuller, & Co. v. Blakely, 13 Or. 546. Privilege of the owner, under section 4 of the act, to de- posit with county clerk in case of disputed. claims, and so discharge pro tanto the lien, is optional with him: Id. Whenever the owner fails or refuses to make such deposit, or pay the claim, notice of which has been given, the lienor has immediate right to sue: Id. Where the work is to be paid for in installments on the completion of specified portions of the contract, a ma- terial-man, furnishing material for one such portion, can enforce the same as soon as that portion is com- plete, without waiting until the whole contract is done: Id. Notice to be filed, after the completion of the building, with the clerk, under section 18 of that act, need not be filed before the action is begun: Id. The object of such notice is to prevent the lien from laps- ing on completion of the contract: Id. Liens. 3S5 Liens (continued). Indorsement on the original notice, made by the auditor, of filing and recording, is not competent proof of the recording thereof: Jewett v. Darlington, 1 W. T. GOl. Proof that such notice was handed to the auditor after office-hours, with request to record, is not sufficient proof that the same was recorded: Id. Mechanics' lien law of 1877 was intended as a substitute for, and not a continuation of, the act of 1873: Seattle & \V. W. R. R. Co. V. Ah Kow, 2 W. T. 3G. All rights accrued under the former act are repealed, ex- cept as kept alive by the provisions of the latter act, and all remedies to enforce such preserved rights are under the latter act: Id. Unless claims were filed in time and manner prescribed in the act of 1877, for work which ended with repeal of statute of 1873, the liens were lost: Id. Allowance of attorneys' fees for foreclosure of lien: Id. "A lot of saw-logs marked F. and A., now lying in Ebey's slough," is sufficient identification and description of property in the notice: "Wheeler v. Port Blakely Mill Co., 2 W. T. 71. The word "lot" defined; in the absence of proof it will be presumed to include all the logs of that description at the place named: Id. The requirement that the notice shall contain " a state-^ ment of the demand and the amount thereof, after de- ducting as near as possible all just credits and offsets," must be strictly and literally followed: Id. But the substitution of the word " effects " for " offsets "' in such notice is a substantial compliance, and is suf- ficient: Merchant v. Ilumeston, 2 W. T. 433. The notice is sufficient if it can be determined therefrom the amount of the demand before the deduction of off- sets, and what amount remained due after making the deductions: Baxter v. Smith, 2 W. T. 97. Notice describing the buildings as one of seven, situate on two certain lots, and setting forth that the demand is for one seventh of the aggregate work and material fur- Tiished in the seven buildings, is void for uncertainty: Merchant v. Ilumeston, 2 W. T. 433. Or. Dio.— 25 386 Liens. Liens (continued). .2. Other Liens. The taking of a mortgage for the purchase-money is a waiver of vendor's lien: Pease v. Kelly, 3 Or. 417. Vendor's lien exists only when there is no higher security taken: Id. Purchaser without notice of defect of title has lien for his improvements: Hatcher v. Briggs, 6 Or. 31. Vendor's lien cannot be asserted by person not the vendor, though claiming to have been the real owner: Kelly v. Ruble, 11 Or. 75. Semble, that vendor's lien does not exist in Oregon: Id.; contra, Gee v. McMillan, 14 Or. 268. Innkeeper has lien upon property of his guest, and prop- erty put in his possession by his guest, for charges: Cook V. Kane, 13 Or. 482. Property of third person, in hands of guest, is covered by innkeeper's lien, if the latter has no knowledge of the rights of the owner, and the property comes to the inn- keeper by virtue of his character as innkeeper: Id. Piano, received by guest in his name, put in the posses- sion of innkeeper by him, is covered by innkeeper's lien, unless the latter had knowledge that another was owner: Id. Vendor's lien for purchase price of land arises in favor of vendor when the vendee fails to give notes in payment, as agreed, but seeks to put the property in his wife's name for the purpose of evading the contract: Gee v. McMillan, 14 Or. 268. Act of 1878 (sec. 3683, Hill's A. L.), giving lien for work bestowed on personal property, is declaratory of the common law, and must be interpreted accordingly: McDearmid v. Foster & Co., 14 Or. 417. Actual possession, in the absence of special agreement, is essential to such lien: Id.; Ilogue v. Sheriff of Lewis County, 1 W. T. 172. Where one is employed to cut and stack grain growing on the land of another, he does not acquire a possession such that he can hold lien on the crop: Id. Lien for advances, under a contract for leasing sheep, ex- amined: Breezley v. Crossen, 14 Or. 473. One who harvests and thrashes grain, and puts same in a Liquor Laws. 387 Liens (continued). barn on land not belonging to the owner of the grain, may have a lien for his labor thereon: Ilogue v. Sher- iff of Lewis Co., 1 W.T.I 72. The lien is not divested, though the barn in which the grain was stored by the lienor was not his own, under the circumstances of the case: Id. Vendee may pay existing liens upon chattels bought by him without notice, and offset the amount against the purchase price: Baker and Hamilton v. McAllister, 2 W. T. 48. The lien of a vendor of logs attaches to each log for the contract price per thousand feet, as if separate contract of sale had been made respecting it: Baxter v. Smith, 2 W. T. 97. liife Insurance. See Insurance. Limitation of Actions. See Statute of Limitations. Liquidated Damages, See Damages. Liquor La"ws. Sale of liquor to Indians may be punished under terri- torial act and act of Congress: Territory v. Coleman, 1 Or. 191. Statute forbidding any person to barter, sell, or dispose of liquor in any manner does not forbid giving: Wood v. Territory, 1 Or. 223; State v. Cutting, 3 Or. 260. The statute was intended to regulate the traflSc in spiritu- ous liquor for a consideration or motive of gain: Id. A conviction for giving cannot stand under an indictment for selling liquor: Id. Allegation of sale of whisky is supported by proof of sale of any kind of spirituous liquor: Frisbie v. State, 1 Or. 248. Keeping open tippling-house on Sunday is indictable un- der statute, and need not be prosecuted before magis- trate: Palmer v. State, 2 Or. 66. Charter of city of Salem does not operate to repeal or change the state license law in that city: Id. Portland charter restricting granting of county license in the city affects state law as to the granting of license only: Burchard v. State, 2 Or. 78. The penal provisions of the state law still apply within the city limits: Id. 388 LiQUOB Laws. Liquor Laws (continued). Requisites in indictment, and what is surplusage therein: Id. Act of 1854, relating to sale of liquor on Sunday, not re- pealed by implication by section 653 of Code of 1865 (sec. 1890, Hill's A. L.): State v. Benjamin, 2 Or. 125. Money paid to county treasurer, for a license which was refused by county court, cannot be recovered by action for money had and received: Trainor v. Multnomah Co., 2 Or. 214. Time and kind of spirituous liquor is immaterial, and need not be strictly proved as alleged in indictment; but person to whom sold must be proved as alleged: State V. Cutting, 3 Or. 260. Burden of proof is on defendant to show he is licensed: Id. If defendant sells liquor, it is immaterial whether it is paid for: Id, Sale of candy and giving liquor, a subterfuge of no avail: Id. Power of city of Portland to license, etc., bar-rooms and drinking-shops: Matter of Schneider, 11 Or. 288; Port- land V. Schmidt, 13 Or. 17. Bar-room and drinking-shop defined: Id. " Quarter," in ordinance, held to mean quarter of year: Id. City may require a bond from applicant for. license: Id. Provision in bond for observance of " all other ordinances of said city," restricted in its application and construc- tion to ordinances in regard to licensing bar-rooms: Id. Ordinance may prescribe qualifications of sureties on bond: Id. Right of seizure by Indian agent of team and wagon haul- ing liquor on reservation: Webb v. Nickerson, 11 Or. 382. Defenses in action by owner for the recovery of the prop- erty seized: Id. Power to license, tax, regulate, and restrain includes power to prohibit the carrying on of the business without complying with the provisions of the ordinance: Port- land V. Schmidt, 13 Or. 17. Such power includes, without express provision in the charter, the power to provide the terms and conditions Lis PENDEifs. 389 Liquor Laws (continued). upon which license should be issued, the amount and mode of collecting tax, and to establish reasonable rules to be observed in carrying on the business: Id. Power to license includes power to fix the license fee, but not to impose a fee operating as a prohibition: Id. Such power, and the power to provide for the good order of the cit}', includes the power to prohibit the sale on particular days, or at particular places, but not to pro- hibit generally: Id. County is a necessary party defendant in proceeding to review action of County Court refusing license: Wood V. Riddle, 14 Or. 254. Act providing license for cities and towns, as well as counties, held unconstitutional as being, without com- plying with the constitution as to amendments, amend- atory of municipal charter, and as not embracing but one subject expressed in the title: State v. Wright, 14 Or. 365! Bill to license sale of liquor is not a bill to raise revenue, and may originate in either house of the legislature: Id. Statute conferring on town of Kalama power to license the sale of liquor does not repeal or limit the general statute prohibiting sale without license from county commissioners: Corbett v. Territory, 1 W. T. 431. Action for damages for breach of contract of sale of liquor to be used for retailing in violation of the license law, cannot be maintained by unlicensed dealer: Bach, Messe, & Co. v. Smith, 2 W. T. 145. Act of 1883, to incorporate Olympia, empowering it to license, regulate, and restrain drinking-saloons, repealed act of 1873, which placed limitations on its powers in that respect: Iladlan v. Olympia, 2 W. T. 340. Wttether the amount of the license fixed by ordinance is greater than authorized in the exercise of police power by the city, questioned by minority of the court: Id. Lis Pendens. To operate as notice binding innocent purchaser for valu- able consideration, the cause should be prosecuted with reasonable dispatch; suspension for five years unrea- sonable: Bybee v. Summers and Ellis, 4 Or. 354. In the absence of statute in Oregon, declaring the effect 390 Lis Pendens. Lis Pendens (continued). of a decree upon a lis pendens purchaser, the common- law rule "will prevail: Walker v. Goldsmith, 14 Or. 125. Doctrine is inapplicable to case, where a deed, conveying legal title, is made pending the suit, when grantee was already the equitable owner prior to the suit: Id. Quaere, when notice begins; whether after summons served, or complaint filed, or before answer containing new matter upon which decree is ultimately rendered in favor of the defendant: Id. Locks. Lock bonds redemption act of 1874, unconstitutional as impairing obligation of contracts: Goldsmith v. Brown, 5 Or. 418. Mandamus the proper remedy to compel owners of boats to furnish lists of freight and passengers passed through the locks under act of 1876 (sec. 3207, HilFs A. L.): Board of Com. v. W. Trans. Co., G Or. 219. Regulation in regard thereto in section 12 of the act (sec. 3207, Hill's A. L.), is reasonable, and within legislative power: Id. Corporation owning boats, and operating as a carrier under state franchise, is subject to such regulations, and is not exempted by reason of owning the canal and locks: Id. Logs. See Timber and Logs. Lost Papers. See Bonds and Undertakings. Loss or absence of material paper from judgment roll, no ground for reversal: Carland v. Heineborg, 2 Or. 75. Transcript on appeal must contain substituted copies of all material papers that have been lost from the record, and the appellant must bring a perfect record to the ap- pellate court: Wolf v. Smith, 6 Or. 73. Ofiicial bond being lost, equity will administer complete relief to person injured by acts of the officer: Howe v. Taylor, 6 Or. 284; S. C, 9 Or. 288. Where the making of an instrument is in dispute, and pretended copy is offered in evidence, its genuineness as a copy and the fact of execution is to be left to the jury: Rosendorf v. Ilirschberg, 8 Or. 240. Parol evidence of contents of original and of recorded copy admissible in action on lost bond where both original and copy are lost: Howe v. Taylor, 9 Or. 288. Malicious Prosecution. 391 liost Papers (continued). The presumption is, that a lost official undertaking was duly executed: Id. Parol proof of the names signed as sureties is admissible: Id. On appeal, original exhibit being lost before transcript is sent up, cannot be supplied in the Supreme Court by- sworn copy, and appeal must be dismissed: Corbitt and Macleay v. Bauer and Roemer, 10 Or. 340. In case of loss of original record by fire in Justice's Court, be- fore transcript was certified upon appeal, but after notice of appeal, the District Court upon application of appel- lant will docket the cause, to enable him to show the facts and supply the loss: Mullen v. Mullen, 1 W. T. 192. The Justice's Court was not the proper court to supply the lost records: Id. Lost Property. Finder cannot use property found, to remunerate himself for trouble and expense in finding and caring for same: Watts V. Ward, 1 Or. 8G. He is not entitled to reward, unless reward was offered by the loser: Id. Lotteries. Lottery defined; payment of prizes in money not essen- tial: Fleming v. Bills, 3 Or. 28G. Essentials of the offense, and what a sufficient indictment for setting up: State v. Dougherty, 4 Or. 200: Lunacy. See Insanity. Machinery. See Admiralty; Liens; Master and Servant; Negligence. Mail-carriers. See Highways. Maiming. See Mayhem. Maintenance. See Champerty. Malice. See Assault and Battery; Criminal Law; Damages; False Imprisonment; Homicide; Malicious Prosecution; Slander and Libel. Malicious Prosecution. An intentional shooting a person, resulting in death, is ' prima facie probable cause for arrest of the slayer: Glaze V. Whitley, 5 Or. 1G4. To sustain the action for malicious prosecution, it must 392 Malicious Prosecution. Mc:«licioiis Prosecution (continued). be shown that the prosecution was both malicious, and without probable cause: Id. Probable cause is question of law and fact; province of •the jury to find the facts, and of the court to find whetlier they amount to probable cause: Id.; Gee v. Culver, 12 Or. 228. Plaintiff must allege the prosecution complained of was determined in his favor, or abandoned by the defend- ant: Merriman v. Morgan, 7 Or. 68; Ferguson v. Tobey, 1 W. T. 275. Release from custody by habeas corpxis, pending investiga- tion of the offense by the grand jury, is not itself a ter- mination of the prosecution: Id. No defense that defendant laid the facts before a justice, and acted on his advice in making the arrest: Gee v. Culver, 12 Or. 228. Malice is not a presumption or conclusion of law, but a fact to be proved: Gee v. Culver, 12 Or. 228; S. C, 13 Or. 598. Under a simple denial, defendant cannot prove justifica- tion: Id. Affirmative matter, not amounting to a justification, may be joined to a denial, and need not be separately stated: Id. Malice need not be anger, hatred, or revenge, but includes every unlawful and unjustifiable motive: Gee v. Culver, 13 Or. 598. The act itself, and all circumstances, may be inqrdred into to ascertain the motive: Id. Not the guilt of the prosecuted, but the intention of the prosecutor, that is the subject of inquiry: Id. Bad reputation of plaintiff for honesty and integrity may be proved to rebut proof of want of probable cause, and in mitigation of damages: Id. Plaintiff cannot be asked, on direct examination, to state the amount of the damages he sustained; must state the facts, and let the jury decide: Ferguson v. Tobey, 1 W. T. 275. In mitigation for continued imprisonment, it may be shown that the plaintiff was offered and refused bail: Id. Mandamus. 393 Malpractice. See Damages; Negligence; Physicians and Surgeons. Mandamus. Lies to compel officer to perform a duty resulting from his office, enjoined upon him by law: Ball v. Lappius, 3 Or. 55. Proper remedy only when party has legal right, and no legal remedy: Id.; Ilabcrsliam v. Scars, 11 Or. 431. The right must be certain, and distinctly proved: Id. The granting or refusing the writ is discretionary: Id. Ordinance requires city marshal to procure and select, subject to approval, a small-pox hospital; the duty cannot be enforced by mandamus: Id. Office of writ same under Code as at common law: War- ner V. Myers, 3 Or. 218; Durham v. Monumental S. M. Co., 9 Or. 41; Habersham v. Scars, 11 Or. 431. Cannot be used to determine ultimate right to office: Id.; Warner v. Myers, 4 Or. 72. Answer denying the legality of the election of the peti- tioner to office which he holds will not abate writ: Id. An answer declaring that a contest was pending to de- termine the legality of the election was struck out: Id. An answer to petition of one having possession of office and certificate of election, which declares that a major- ity of the legal votes were cast for the defendant, was struck out on motion: Id. Proper remedy when school clerk has funds, and refuses to pay warrant presented: Howard v. Bamford, 3 Or. 565. So, to require incumbent to deliver to successor appurte- nances of office: Warner v. Myers, 4 Or. 72. The only question to be determined is, to whom certificate of election was awarded: Id. Mandamus to County Court to complete its record, proper remedy in Circuit Court, and not injunction: Road Co. V. Douglas Co., 5 Or. 373. Proper remedy to test the qualifications of voters, the legality of the conduct of the judges, or the canvass of election selecting county seat, and not injunction: •McWliirter v. Brainard, 5 Or. 426. Proper remedy to compel owners of steamboats to furnish freight and passenger lists passed through the locks, as 394 Mandamus. Mandamus (continued). required by act of 1876 (sec. 3207, Hill's A. L.): Board of Com. V. W. Trans. Co., 6 Or. 219. Not proper remedy where there is a plain, speedy, and adequate remedy at law: Durham v. Monumental S. M. Co., 9 Or. 41. Will not lie to compel the transfer of stock in a corpora- tion: Id. Lies to board of canvassers of election to perform minis- terial functions in canvassing, though their canvass is completed: Simon v. Durham, 10 Or. 52. Motion to dismiss appeal from refusal to grant the writ, on the ground that the question of the right to office is involved in another case pending, denied: Id. Supreme Court may, on application for mandamus to com- pel enforcement of its decrees, inquire into the merit of an injunction of a Circuit Court restraining the same: State V. Jacobs, 11 Or. 314. The issuing of the writ is conclusive as to the invalidity of the injunction: Id. Sheriff violating such restraining order is entitled to dis- charge in proceedings for contempt in such Circuit Court, on producing the writ of mandamus: Id. Mandamus does not lie to compel sheriff to levy, where there is no showing that an action on his bond for his neglect or refusal would be unavailing: Habersham v. Sears, 11 Or. 431. Judge may be compelled to sign bill of exceptions by mandamus: Ah Lep v. Gong Choy, 13 Or. 205. Duty of clerks of counties to make out notices of election, naming the offices to be filled, etc., before elections, is imperative, and may be enforced by mandamus: State V. Ware, 13 Or. 380. When the question is one of public duty and in which the general public is interested, the relator need show no special interest other than as a citizen and voter: Id. Proper remedy to compel sheriff to release from assess- ment property wrongly assessed, where he refuses, upon proper showing, to remit the tax illegally charged: Smith V. King, 14 Or. 10. Mandamus is not the proper remedy to compel the treas- urer of Umatilla County to pay over to Morrow County Marriage. 395 Mandamus (continued). school taxes collected, upon the creation of the latter county out of the former: Morrow Co. v. Hendry x, 14 Or. 397. The act not being specially enjoined as a duty resulting from an office, trust, or station, mandamus does not lie: Id. Power of judge at chambers relative to writs of mandate not determined, but appearance of defendant in court and subsequent proceedings cured every irregularity: Clarke County v. Brazee, 1 W. T. 199. Statutes have rendered the difficult learning of old writs obsolete: Id. The complaint in the case is sufficient to entitle to the re- lief sought: Id. County having applied, through its prosecuting attorney, for writ against county commissioners, such attorney cannot, though it be the wish of both parties, represent both in subsequent proceedings: Clarke Co. ex rel. etc. V. Commissioners of Clarke County, 1 W. T. 250. Mandate. See Appeal and Error. Manslaughter. See Criminal Law; Homicide. Maritime Contracts. See Admiralty; Boats and Vessels; Contracts. Maritime Law. See Admiralty. Marriage. See Divorce; Husband and Wife. Is a valuable consideration; when deed set aside for fraud: Bonser v. Miller, 5 Or. 110. Deposition taken in another proceeding between different parties, to prove marriage, not admissible under section 819 of the Code (sec. 829, Hill's A. L.) : Murray v. Mur- ray, 6 Or. 26. Cohabitation, and recognition in society as husband and wife, is prima facie proof of marriage in a civil suit: Id. Contract is not within the purview of constitutional inhi- bition of laws impairing obligation of contracts: Rugh V. Ottenheimer, 6 Or. 231; Ma>mard v. Valentine, 2 W. T. 3; Maynard v. Hill, 2 W. T. 321. Concealment by tlie woman, from intended husband, of the .fact that she had been the mother of a bastard, not such fraud as will annul the marriage: Smith v. Smith, 8 Or. 100. 396 MARRLA.GE. Marriage (continued). Complaint for breach of promise, what sufficient: Lahey V. Knott, 8 Or. 198. Evidence and instructions; when plaintiff must prove re- quest or offer to marry on her part before action : Id. On marriage, at common law, personalty of the wife in her possession or subsequently reduced to her posses- sion, or that of the husband during the coverture, be- came the property of the husband: Cressey v. Tatom, 9 Or. 541. In crim. con., the marriage may be proved by the testi- mony of eye-witnesses or of the parties: Jacobsen v. Siddal, 12 Or. 280. State has paramount and controlling interest in marriage, and legislature has plenary power over divorce and -marriage: Maynard v. Valentine; 2 \V. T. 3; Maynard V. Hill, 2 W. T. 321. Married Women. See Husband and Wife. Marshal. See Summons. Marshaling. See Liens; Mortgages. Master in Chancery. See Affidavits. Master and Servant. See Damages; Municipal Corpora- tions; Negligence. Corporation liable for carelessly firing a gun by agent, though done in a manner different from orders: Oliver V. N. P. T. Co., 3 Or. 84. Agent alone is liable where he abandons principal's busi- ness and causes injury; but otherwise, when he does the business of the principal, although he does not act in the manner directed: Id.; French v. Cresswell, 18 Or. 418. Person employed about dangerous machinery must use his thinking faculties: Stone v. Oregon City Mfg. Co., 4 Or. 52. Rule of liability of master for defective machinery fur- nished servant: Id. In action for negligence in not supplying suitable appli- ances, it was held error to instruct on general propo- sitions of law as to defendant's duty in employing fel- low-servants: Willis V. Or. R'y & Nav. Co., 11 Or. 257. Rule of liability of master for injury occasioned by negli- ncnce of fellow-servants and vice-principals: Id. Merger. 397 Master and Servant (continued). Foreman of a gang of laborers erecting a shed under di- rections of a superior is a fellow-servant with the laborers: Id. Exemplary damages for wrongful act of servant, when recoverable: Sullivan v. Or. R'y & Nav. Co., 12 Or. 392. Master liable for damage by trespass by his sheep in charge of a servant, although the latter disobeyed orders in occasioning the damage: French v. Cresswell, 13 Or. 418. The relation between master and servant does not express the more complex relation between master and crew: Nickels V. Griffin, 1 W. T. 374. City liable for negligence of contractor, working under supervision of city surveyor, in improvement of street, whereby adjoining lot is injured: City of Seattle v. Buzby, 2 W. T. 25. In such case the contractor is servant of the city, and the rnlo oi respondeat superior HTpTj^lies: Id. Master of Vessel. See Admiralty. Power of master to bind owners of a vessel: Gove v. Moses, 1 W. T. 7. Cannot act as agent of consignee until his duty as master ceases: Id. Relation of master and crew; source, measure of,^ and reason for master's authority: Nickels v. Griffin, 1 W. T. 374. It is the duty of master to maintain order on vessel, of sailor to obey, and there is a correlative right of sailors to the protection of master from assault by mate: Id. Master is responsible for injuries inflicted on seaman by mate without sufficient cause, with master's knowledge: Id. Mayhem. . . Any offense made punishable by section 527 of Criminal Code (sec. 1735, Hill's A. L.), may be called mayhem in indictments: State v. Vowels, 4 Or. 324. Measure of Damages. See Damages. Mechanics' Liens. See Liens. Merger. If the owner in whom different estates have united has an interest in keeping them separate, the intent to keep 398 Merger. Merger (continued). them separate is presumed, and there is no merger: Watson V. Dundee M. & T. I. Co., 12 Or. 474. There can be no merger where an outstanding estate in- tervenes: Id. Mesne Profits. Mortgagee in possession cannot claim his possession ia unlawful, when he is sued for the mesne profits: Ren- shaw V. Taylor, 7 Or. 315. Court may order a reference to ascertain the amount of such mesne profits: Id. After ejectment, when the person ejected has established his right by a suit in equity, he may recover the mesne profits in the same suit, which he was adjudged to pay by the judgment: Starr v. Stark, 7 Or. 500; Hill v. Cooper, 8 Or. 254. Such suit does not operate on the judgment at law, but on the parties, and the decree may enjoin the enforcing of the judgment: Id. Rents and profits received to the use of another by one in possession with the legal title may be recovered in a suit in equity: Hill v. Cooper, 8 Or. 254. In an action to recover rents and profits, proof of the use and occupation and the annual value of the premises is admissible: Hill v. Cooper, 10 Or. 153. Evidence that co-tenant in possession, who has redeemed the property at tax sale and claims to hold until reim- bursed, has been receiving the whole of the rents and profits, is admissible: Minter v. Durham, 13 Or. 470. Militia. It is the duty of the County Court to provide an armory for a militia company: Mountain v. Multnomah Co., 8 Or. 470. The County Court must audit, allow, and cause to be paid, necessary expenses of same, and its decisions thereon may be reviewed by a writ of review: Id. But on review it must appear affirmatively by the record that every step to make the claim against the county a proper one has be«n duly taken: Vincent v. Umatilla Co., 14 Or. 375. Mills. See Dams; Water and Watercourses. Breakwater and dam are part of mill, so that lien for work Mines and Mining. 399 Mills (continued). on the dam attaches to the mill: Willamette Falls etc. Co. V. Remick, 1 Or. 169. Agreement to convey land, mill, etc., held to include all things necessary to the enjoyment of the mill privilege, and to permit raising the dam where necessary to the full use and enjoyment of the property: Brugger v. Butler, 6 Or. 459. Right of way granted for mill-race does not include a right to appropriate water of a stream, crossing the right of way, on grantor's land: Miller v. Vaughn, 8 Or. 333. Such grant is a mere easement, and an express reservation of water flowing on grantor's land is unnecessary: Id. Right to overflow adjoining land is an easement which will pass by grant of a mill and its appurtenances: Jackson v. Trullinger, 9 Or. 393. Mines and Mining. See Public Lands. Mines of precious metals belong to the eminent domain of the sovereignty: Gold Hill Q. M. Co. v. Ish, 5 Or. 104. Occupancy and pre-emption under act of Congress of July 26, 1866: Id. Patent to agricultural lands does not pass title to known deposits of precious metals: Id. Failure of government surveyors to segregate mining from agricultural land does not afiect rights of occupant miners: Id. Water rights for mining, under United States statutes, can- not be lost by non-user alone, short of the period of limitations for real actions: Dodge v. Marden, 7 Or. 456. Such rights may be abandoned, which is evidenced by an act showing an intention to surrender or forsake the ri^it: Id. Under the Oregon statute, if a water right is so abandoned, and the person having the right ceased for one year thereafter to exercise any act of ownership over it, his right becomes lost: Id. Purchaser of land is not bound to disclose his knowledge of a mine to the vendor: Caples v. Steel, 7 Or. 491. But his willful misrepresentation of the facts will render the sale voidable: Id. 400 Minors. Minors. See Guardian and Ward; Infants; Parent and Child. Misdemeanor. See Criminal Law. Misjoinder. See Parties. Pleadings. Misrepresentations. See Fraud and Deceit. Mistake and Accident. Money paid under mistake of law in absence of fraud cannot be recovered: Johnson v. McGinness, 1 Or. 292. Due diligence must be shown to enable court to enjoin a judgment for mistake or accident: Wells, Fargo, & Co. V. Wall, 1 Or. 295. To set aside a judgment, actual and specific fraud, or sur- prise, accident, or mistake, must be specific in bill: Snyder v. Vannoy and Hyland, 1 Or. 344. Mistake, accident, or fraud must appear, or equity will not relieve from ignorance of a fgict: Fahie v. Pressey, 2 Or. 23. Mistake as ground for a relief from a writing must clearly show the mistake contrary to the intention: Shively v. Welch, 2 Or. 288. Mistake of clerk in not entering judgment by confession in the judgment-book does not affect validity of judg- ment, except in favor of one who has been misled by the omission: King v. Higgins, 3 Or. 406. Evidence must be clear and satisfactory to warrant cor- rection of deed for a mistake: Lewis v. Lewis, 4 Or. 177; Stephens v.Murton, 6 Or. 193; Ramsey v. Loomis, 6 Or. 367; Remillard v. Prescott, 8 Or. 37. Must have been the mutual mistake of the parties: Evarts V. Steger, 5 Or. 147. What complaint must show in suit to reform deed on the ground of mistake: Lewis v. Lewis, 5 Or. 169; Stephens V. Murton, 6 Or. 193; Ramsey v. Loomis, 6 Or. 367. Reformation will not be granted for fraud, where com- plaint alleges mistake only: Stephens v. Murton, 6 Or. 193. But where the language of the complaint is ambiguous as to whether fraud or mistake is alleged, the objection, if not taken in time, is waived: Baldock v. Johnson, 14 Or. 542. Land not included in the deed, omitted by mistake, may be inserted: Ramsey v. LoomiSj 6 Or. 367. Money. 401 Mistake and Accident (continued). It must be shown that the grantor was a party to the mis- take in the deed: Remillard v. Prescott, 8 Or. 37. Equity will not interpose to correct a deed made pendente lite between parties to a divorce suit, which is made in consideration of not defending the suit: Phillips v. Thorp, 10 Or. 494. Supreme Court has power, under section 100 of the Code (sec. 102, Hill's A. L.), to relieve from a mistake in a decree occurring in Circuit Court, where the oppor- • tunity to apply to the Circuit Court was lost by reason of an appeal having been taken: Wright and Jones v. Edwards, 10 Or. 288. To warrant correction of decree, mistake must be clearly proved, and not a judicial mistake, and there must be no other remedy: Smith v. Butler, 11 Or. 46. Mistake in decree in description of a division line estab- lished by referees corrected: Id. Party doing work on another's contract, by mistake, can- not recover the value of such work: Rohr v. Baker, 13 Or. 350. Mistake must be remedied in equity, and cannot be shown, by parol proof varying the terms of a deed, as a defense- in ejectment: Holcomb v. Mooney, 13 Or. 503. Amicable adjustment of disputed claims will not be set aside for mistake of law or fact, in the absence of fraud or want of equity: Wells v. Neff, 14 Or. 66. Total want of understanding of the nature or value of es- tate conveyed by daughter to mother without consider- ation warrants relief on the ground of mistake: Bal- dock V. Johnson, 14 Or. 542. Mistake as a defense to action on account stated: Baxter V. Waite, 2 W. T. 228. Money^ State has power to require taxes to be paid in coin, and such is the law in Oregon: Whittaker v. Haley, 2 Or. 128. Fees of officers may be paid in any legal money, and offi- cer has no right to demand coin: Coffin v. Coulson, 2 Or. 205. On complaint for $80, plaintiff cannot recover $114, on ground that coin was worth that in currency: Davis v. Mason, 3 Or. 154. Ou. Dig.— 26 402 Money. Money (continued). Evidence of value of coin or custom of banKS to pay coin on checks not admissible: Id. Contract to pay in gold coin must be in writing: Id. Co'iiplaint on contract to pay in gold coin need not allege the contract was in writing: Taylor v. Patterson Co., 5 Or. 121; Russell v. Swift, 5 Or. 233. Statute construed; does not alter rules of pleading, but mode of proof: Id. Constitution, section 1, article 9, does not prohibit estab- lishing banks, except those issuing notes and bills to circulate as money: State v. H. S. & L. A., 8 Or. 396. Any mark commonly understood and employed in busi- ness transactions to denote the division into dollars and cents, sufficient in general records to indicate that the figures represent money: De Lashmutt v. Sellwood, 10 Or. 319. Money Had and Received. See Assumpsit. Does not lie for money paid under mistake of law without fraud : Johnson v. McGinness, 1 Or. 292. Nor for money deposited under statute with county treas- urer, on application for liquor license which was denied: Trainer v. Multnomah Co., 2 Or. 214. County may recover money paid to officer under claim of right for his services against law: Grant Co. v. Sels, 5 Or. 243. The nature and scope of the action of money had and re- ceived: 9 Or. 481. Lies to recover money paid by purchaser at sale on exe- cution, issued without a judgment: Id. Lies for money paid by debtor to creditor to be applied on a certain debt, and which is not so applied: Stewart V. Phy, 11 Or. 335. In such action, it is unnecessary to allege a promise to re- pay: Id. Lies to recover money obtained by defendant, which ex sequn et 6ono belongs to plaintiffs: Peterson v. Foss, 12 Or. 81. Month. When the word "month " occurs in a statute, lunar month is intended, unless the. statute indicates otherwise: Hale V. Finch, 1 W. T. 517. Mortgages. 403 Monuments. See Boundaries. Mortgages. See Chattel Mortgages. 1. The Mortgage; its Construction and Validity. 2. Foreclosure and Redemption. 3. Priority and Rights of Parties. 1. The ^Iortgage; its Construction and Validity. A mortgage attested by one witness will be upheld in chancery between the parties; Moore v. Thomas, 1 Or. 201. So, a mortgage unrecorded and unacknowledged: Id. Effect of signing by one partner, with assent of other, the firm name to note and mortgage: Chavener v. Wood, 2 Or. 182. Mortgage does not vest title or interest in mortgagee in the property, but is a mere security: Anderson v. Bax- ter, 4 Or. 105; Sellwood v. Gray and De Lashmutt, 11 Or. 534. Is incident to the debt; and a transfer of the note or other evidence of indebtedness carries the mortgage: 'Roberts V. Sutherlin, 4 Or. 219. The County Court may order guardian to mortgage minor's real property: Trutch v. Bunnell, 5 Or. 504; contra, Trutch v. Bunnell, 11 Or. 58. Forfeiture of the debt to school fund for usury carries mortgage security also: Chapman v. State, 5 Or. 432. Pre-existing debt or liability is sufficient consideration: Moore v. Fuller, 6 Or. 272. ]Mortgage by a woman of her separate property for hus- band's debt may be enforced: Id. Deed, absolute on its face, may be shown by parol to have been intended as a mortgage: Hurford v. Harned, 6 Or. 362; Stephens v. Allen, 11 Or. 188; Albany and Santiam W. D. Co. V. Crawford, 11 Or. 243; Wilhelm v. Wood- cock, 11 Or. 518; Miller v. Ansenig, 2 W. T. 22. Mortgage to secure future advances is valid: Hendrix v. Gore, 8 Or. 407; Nicklin v. Betts Spring Co., 11 Or. 406. Act of 1882, providing for the taxation of mortgages, is constitutional: Mumford v. Sewall, 11 Or. 67; Crawford v. Linn County, 11 Or. 482. Principles and evidence upon which a deed is construed as a mortgage: Stephens v. Allen, 11 Or. 188; Albany 404 Mortgages. Mortgages (continued). and Santiam W. D. Co. v. Crawford, 11 Or. 243; Wilhelm V. Woodcock, 11 Or. 518. Evidence to prove a deed, absolute on its face, a mortgage, should be clear and satisfactory: Albany and Santiam W. D. Co. V. Crawford, 11 Or. 243; Wilhelm v. Wood- cock, 11 Or. 518. Contract construed and held a mortgage, and amount due determined from the evidence: Manaudas v. Heilner, 12 Or. 335. Mortgage, though but a securit}^ is a conveyance within the registry acts: Fleschner v. Sumpter, 12 Or. 161; Watson V. Dundee M. & T. I. Co., 12 Or. 474. Merely taking deed absolute, intended as a mortgage, where there is no concealment, is not fraud on the mortgagor's creditors: Haseltine v. Espey, 13 Or. 301. Statute of Washington Territory, relating to mortgages, is taken from Indiana, and differs from statutes in Cali- fornia and New York: Hays v. Miller, 1 W. T. 143. Agreement for sale of land and execution of a deed upon the vendee paying certain taxes and certain other sums in installments, and on failure to pay any installment the whole to become due, construed as an equitable mortgage: Wood v. Mastick, 2 W. T. 64. Whether a parol contract can be set up to show that note, secured by mortgage absolute on its face,' was condi- tional, to be void on failure of payee to execute a deed, qusere: Kenworthy v. Merritt, 2 W. T. 155. 2. Foreclosure and Redemption. Wife holding legal title is necessary party; and in suit to foreclose husband's mortgage on her property is not es- topped by silence or notice, to claim her rights, not hav- ing been made a party: Fahie v. Pressey, 2 Or. 23. Decree in foreclosure under the Oregon statute; its nature as regards subsequent lienors made parties: Chavener V. Wood, 2 Or. 182. Plaintiff in execution becoming purchaser extinguishes his specific lien: Id. Who may redeem, and upon what terms: Id,; Abraham V. Cheiioweth, 9 Or. 348; Sellwood v. Gray and De Lashmutt, 11 Or. 535; Parker v. Dacres, 2 W. T. 439. Does not bind encumbrancer not made a party; junior Mortgages. 405 Mortgages (continued). and subsequent lienors proper parties: Besser v. Haw- thorne, 3 Or. 129; S. C, 3 Or. 512; Sellwood v. Gray and De Lashmutt, 11 Or. 534. Equity of redemption defined; cannot be cut oflf except by decree or conveyance by mortgagor: Id. Statute defining, does not create equity of redemption; simply defines mode of exercise: Id. Equity of redemption cannot be divested by suit to which . one having alien is a stranger: Id. Mortgagee, not made party, need not redeem, but may foreclose as if no sale made: Id. Former rule, that party not served was, in the absence of fraud, bound by the account, does not cut off the right to redeem: Id. On foreclosure of junior mortgage, proceeds, how applied: Id. A junior mortgagee taking a lease of the premises from a mortgagee, not necessarily estopped to set up his right to redeem: Atkinson v. Morrissy, 3 Or. 332. Mortgagor redeeming must tender debt, except where suit necessary to fix amount: Id. Equity will assume jurisdiction where the question of right to redeem is in controversy: Id. Mortgagee having made improvements, the mortgagor having agreed to pay therefor, such improvements were added to the sum due: Id. Defendant refusing to accept money, on ground that plain- tiff had no right to redeem, tender is unnecessary: Id. Foreclosure suit is not a suit to determine interests in real property, within section 378 of the Code (sec. 382, Hill's A. L.), and is not affected by statute of limitations re- garding such suits: Anderson v. Baxter, 4 Or. 105. It is a mere collection of a debt, and does not involve trial of title: Id. Absence of mortgagor from the state does not prevent statute from running on right to foreclose: Id. ^lortgagee in possession occupies no more favorable posi- , tiou than if out: Id. Sale on execution, without foreclosing mortgage given to secure the debt, is not void, and is not subject to col- lateral attack: Mathews v. Eddy, 4 Or. 225. 406 Mortgages. Mortgages (continued). Mortgage may be foreclosed, although the notes are barred by statute of limitations: Myer v. Beal, 5 Or. 130. No defense in foreclosing mortgage on minor's property that guardian's name is signed to the note and mort- gage, and not minor's: Trutch v. Bunnell, 5 Or. 504. Foreclosure of mortgage in suit by school land commis- sioners, the district attorney is entitled to prosecute, though other counsel may be employed to assist: Claim of Ison, 6 Or. 465. Heirs are necessary parties defendant in foreclosure-suit against executors: Renshaw v. Taylor, 7 Or. 315. Liability, on foreclosure, when new agreement has been substituted, leaving the old mortgage as security, is de- termined by the new agreement: Id. Decree of foreclosure against an estate void if heirs are not made parties: Id. Defendant denying the amount alleged to be due and al- leging payment need not plead the payment as a counterclaim: Hendrix v. Gore, 8 Or. 406. On foreclosure of wife's mortgage after her death, one who has purchased the interest of her children, redeeming, holds as against a claim of husband to curtesy: Abra- ham V. Chenoweth, 9 Or. 348. Demurrer will not lie to complaint for describing land by reference to natural objects, apparently including a definite tract: Ladd and Tilton v. Mason, 10 Or. 308. Mortgagor is entitled to answer the affirmative matter al- leged in the answers of co-defendants who claim liens in their favor: Id. No order of interpleader in such case is necessary, and answer filed may not be disregarded: Id. On foreclosure by mortgagee of mortgage securing several notes due him, surety on one of the notes cannot com- pel pro rata application of proceeds to- all the notes: Wilson V. Allen and Lewis, 11 Or. 154. The amount that subsequent creditor not made a party to the foreclosure must pay to redeem is the amount due prior encumbrancer at time of sale, not merely the sum bid at the sale: Sellwood v. Gray and De Lashmutt, 11 Or. 534. But otherwise, where some one who was equitably bound has paid the balance oyer the bid: Id. Mortgages. ^^* Mortgages (continued). In a foreclosure against joint makers, the court cannot de- termine a controversy as to which was surety or prmci- pal: Ilovendcn v. Knott, 12 Or. 267. An assignee of a mortgage taken in the name of the as- signor who was a trustee for the assignee is bound by a default of the assignor in a suit to foreclose a prior lien: Watson V. Dundee M. & T. I. Co., 12 Or. 474. Statute preventing concurrent action for debt and fore- closure is in derogation of common law, and to be strictly construed: Hays v. Miller, 1 W. T. 143. The object was to avoid multiplicity of suits, and accom- plish both in one suit: Id. When judgment is unsatisfied by sale of the mortgaged property, sheriff must proceed at once under copy of order of sale to levy on and sell such further property of debtor subject to execution as will satisfy the judg- ment: Id. When the whole amount of the debt is due, judgment may be rendered therefor besides decreeing foreclosure, to have the same effect as a lien as other judgments, dif-^ fering only in the manner of being satisfied: Id. Simple decree of foreclosure is no lien on property outside the mortgage: Id. Such decree cannot be amended nunc pro tunc, to give per- sonal judgment for the debt, to the prejudice of other lien-holders on the property of the debtor: Id. A decree of foreclosure obtained by fraud and collusion, for the purpose of cutting off the rights of a third per- son, being a sham, concludes no one, and no rights are determined thereby: Connoly v. Cunningham, 2 W. T. 242. Right to redeem applies only to property sold on execu- lion; not to that sold on foreclosure: Parker v. Dacres, 2 W. T. 439. No equity of redemption in the mortgagor, since the legal title does not pass from him under the mortgage: Id. Sale on foreclosure is absolute, unless court makes provis- ion in decree for redemption by mortgagor: Id. Suit to redeem property sold on foreclosure is not governed by statute of limitations concerning suits relating to real property, but is barred in two years under section 33 of the Code: Id. 408 Mortgages. Mc i-tgages (continued). 3. Priority and Rights of Parties. Subsequent recorded mortgage has priority over former one unrecorded: Moore v. Thomas, 1 Or. 201. Subsequent lienors do not have priority over unrecorded mortgage when they are charged with the same notice the owner of the fee has, and he is estopped by recitals in his deed from denying: Holmes v. Ferguson, 1 Or. 220. Subsequent recorded mortgage entitled to priority over equitable mortgage, in absence of notice in fact: Chav- ener v. Wood, 2 Or. 182. Mortgagor retains right of possession, and the legal title: Besser v. Hawthorne, 3 Or. 129; S. C, 3 Or. 512. Lien of senior mortgagee, merged in the legal title when he buys on foreclosure: Id.; De Lashmutt v. Sellwood, 10 Or. 319. But when the intention is clear, the legal and equitable titles may be held separate: Id. Proceeds applied, first, to prior mortgage; second, junior; third, holder of the legal title: Id. Taking of mortgage is a waiver of vendor's lien: Pease v. Kelly, 3 Or. 417. Mortgagee in possession with the consent of the mort- gagor, after default of the latter, may remain until debt is paid, and is not liable to ejectment: Roberts v. Suth- erlin, 4 Or. 219. Mortgage is incident to the debt, and a transfer of the note, if one exists, is necessary to carry the mortgage: Id. Mortgagee in possession is entitled to allowance for neces- sary repairs, in his account of profits: Adkins v. Lewis, 5 Or. 292. When grantee of mortgage absolute on its face conveys to bona fide purchaser, he cannot deny mortgagor's title in suit by mortgagor to recover value of the property: Id. Accounting between such mortgagor and mortgagee: Id. Minors are not adversary parties in proceeding before County Court by guardian for leave to mortgage real property of minors: Trutch v. Bunnell, 5 Or. 504. But see 11 Or. 58. Married woman, having mortgaged her separate property Mortgages. 409 Mortgages (continued). for husband's debt, must show the mortgagee was party to the fraud, to avoid the mortgage: Moore v. Fuller, 6 Or. 272. Purchaser is not personally liable to pay the debt, unless he assumes the mortgage: Walker v. Goldsmith, 7 Or. 161. But when he assumes the mortgage as part consideration, he is personally liable in the first instance: Id. ■Forbearance or neglect by creditor to sell property pledged releases surety when the contract requires diligence in the sale of the property pledged: Id. The taking of a mortgage for the debt waives mechanic's lien on same property: Trullinger v. Kofoed, 7 Or. 228. Liability when new agreement has been substituted, leav- ing the old mortgage as security, is determined by the new agreement: Renshaw v. Taylor, 7 Or. 315. Mortgagee in possession, when sued for mesne profits, cannot claim his possession was unlawful: Id. Liability of broker lending money on second mortgage, insufficient as security, is discharged by principal sign- ing composition agreement, releasing borrower: Nicolai V. Lyon, 8 Or. 56. Damages recoverable from county clerk, for failure to record a mortgage: Howe v. Taylor, 9 Or. 288. Mortgagee of the interest of one co-tenant, on partition acquires lien on the mortgagor's allotted portion: Board S. L. Com. v. Wiley and Davis, 10 Or. 86. Mortgagee in possession by virtue of foreclosure and sheriff's deed is not in the position of one in possession with consent of mortgagor, until debt is paid: De Lash- mutt V. Sellwood, 10 Or. 319. Such mortgagee has no right of possession as against purchaser under a junior judgment lien, where the judgment creditor was not made a party to the fore- closure: Id. Where the junior lien-holder is not made a party to the , foreclosure of a prior mortgage, the purchaser under the foreclosure sale acquires the same position as an assignee of the mortgage, and is in effect a mere successor to the interest of the mortgagee foreclosing: Id. 410 Mortgages. Mortgages (continued). On foreclosure, mortgagee purchasing acquires legal title, and mortgage is merged: Id. Subsequent foreclosing of junior lien does not give mere right to redeem, but to sell the legal title: Id. Purchaser is not affected by subsequent proceedings in bankruptcy against mortgagor: Id. Mortgagee in possession under deed absolute on its face must tender conveyance before suing for the debt: Wol- cott V. Madden, 10 Or. 370. Mortgage properly acknowledged has priority over a deed of same date, recorded at same time, but not entitled to record: Fleschner v. Sumpter, 12 Or. 161. Mortgage stands on same footing with deed with respect to recording: Watson v. Dundee M. & T. I. Co., 12 Or. 474. Assignment of mortgage, though not recorded, protects assignee against subsequent lienors: Id. Assignments of mortgages need not be recorded, and need not be by formal conveyance: Id. Purchaser at foreclosure acquires the interest of the mort- gagee, and so much of the equity of redemption as is not bound by junior liens: Id. There is no merger of the estates in the purchaser on fore- closure, where he has an interest in keeping them dis- tinct, or there is an intervening interest outstanding: Id. Recording a deed, intended as a mortgage, in the record of deeds, is sufficient notice of grantee's claim: Hasel- tine V. Espey, 13 Or. 301. Semhle, that such instrument could not properly be re- corded as a mortgage: Id. Evidence reviewed, and held not to warrant allowing mort- gagee in possession compensation for managing: Hol- laday v. Holladay, 13 Or. 523. Where one has given a bond for a deed, and subsequently he mortgages the land to another, the mortgage transfers a security for tlie payment of the purchase price under the bond, to the extent of the mortgage: Burkhart v. Howard, 14 Or. 39. The assignee of the vendee's note after maturity, in such case, acquires no greater right than his assignor as against such mortgagee, although the mortgage was not recorded until after the assignment: Id. Municipal Corporations. 411 Mortgages (continued). If a written instrument constitute both a note and a mort- gage, the holder at his option may recover on the note, or proceed to foreclose: Frank v. Pickle, 2 W. T. 55. Under a contract to sell land and execute deed, which is construed as an equitable mortgage, vendee may, on fail- ure of vendee to pay as agreed, foreclose against all his rights in the property: Wood v. ^Mastick, 2 W. T. 64. Vendor in such case has option of foreclosing or tendering deed, and suing for purchase price: Id. Under a sham decree of foreclosure, fraudulently and col- lusively obtained for the purpose of cutting off the rights of a third party, no rights are gained: Connoly v. Cun- ningham, 2 AV. T. 242. Motions. See Pleading; Practice. Multifariousness. See Equity. Municipal Corporations. See Constitutional Law; Elec- tions; Highways; Master and Servant; Negligence; Statutes. 1. Powers, and their Exercise. 2. Liabilities. 3. Officers and Agents. 4. Streets, and Street Assessments. 5. Actions and Suits. 1. Powers, and their Exercise. Under power to license brokers, etc., no authority to license the " sale of bills of exchange," where the busi- ness is carried on by persons for themselves, and with their own funds: Portland v. O'Neill, 1 Or. 218. After assessment is made, and the tax is levied thereon, the city cannot order additional assessment of property subsequently coming within the city: Or. Steam Nav. Co. V. Portland, 2 Or. 81. Persons not previously assessed, who subsequent to the levy commence to deal in goods, may be assessed: Id. Charter of Corvallis not having given it power to try con- test of municipal election, it has not that power: Rob- ertson V. Groves and Corvallis, 4 Or. 210. Statutes creating municipal corporations are to be strictly construed: Id.; Corvallis v. Carlile, 10 Or. 139; Bur- meister v. Howard, 1 W. T. 207. The i^ower to try contest is not implied from the right to provide for election of officers: Id. 412 MuxiriPAL Corporations. Municipal Corporations (continued). Effect of limitation in Salem charter of municipal indebt- edness to one thousand dollars: Salem Water Co. v. Salem, 5 Or. 29. Ordinance to pay seventeen hundred dollars per annum for seventeen years, without providing means of pay- ment, void: Id. A devise that would be valid to a town is valid if made to trustees in perpetuity for the town: Brown v. Brown, 7 Or. 285. A city is capable of becoming beneficiary of a trust in perpetuity: Id. City need not resort to equity to annul a contract rendsred void by the employment of Chinese on public works, contrary to the express stipulations of the contract: Portland v. Baker, 8 Or. 356. Jurisdiction of a municipal body under its charter to judge of the election of its members is not exclusive, and Circuit Court will entertain proceedings under sec- tion 354 of the Code: State v. McKinnon, 8 Or. 493. Charter provision giving trustees " power and authority " to repair streets, construed duty and obligation: Ran- kin V. Bucknian, 9 Or. 253. A city can exercise no powers not expressly conferred or necessarily implied: Corvallis v. Carlile, 10 Or. 139; Portland v. Schmidt, 13 Or. 17; Hawthorne v. Port- land, 13 Or. 271. Power to legislate to " secure the peace of the city " does not warrant the passage of an ordinance providing for closing stores on Sunday: Id. Power of city of Portland to license bar-rooms and drink- ing-shops: Matter of Schneider, 11 Or. 288; Portland v. Schmidt, 13 Or. 17. Validity of ordinance licensing bar-rooms, under charter power to license, tax, regulate, and restrain: Portland v. Schmidt, 13 Or. 17. Power of city of East Portland to raise assessments, on assessment roll of property within the city, obtained from county assessment roll: Dalton v. Portland, 11 Or. 42G. Clause in a void ordinance repealing prior ordinances in conflict does not operate to repeal any ordinance con- Municipal Corporations. 413 Municipal Corporations (continued). flicting with the void provisions: Portland v. Schmidt, 13 Or. 17. When an express power is granted, the power necessary to carry it into execution is implied: Id. Power to license, regulate, tax, and restrain drinking- shops implies necessary power to effectuate the object, but not to prohibit absolutely: Id. But may include power to prohibit, if license fee is not paid: Id. •Title of ordinance may be resorted to, to ascertain inten- tion of council: Id. City of Portland cannot declare violation of a city ordi- nance a misdemeanor: Id. Power to improve streets, and tax the cost thereof, and sell real property for delinquent taxes, is statutory, and must be strictly pursued: Dowell v. Portland, 13 Or. 248; Hawthorne v. Portland, 13 Or. 271. The exercise of such power is not an adjudication or the exercise of jurisdiction in a judicial sense: Id. City of Astoria has power to suppress and prohibit bawdy- houses, and to punish violation of the ordinance: Wong V. Astoria, 13 Or. 538. City has power to punish, under the provisions of charter, for an offense, though the same be punishable under state law, and criminal in its nature: State v. Sly, 4 Or. 277; State v. Bergman, 6 Or. 341; Wong v. Astoria, 13 Or. 538. Power under charter to prevent and restrain riots, noise, disturbance, etc., on the streets, does not authorize city to punish for assault with dangerous weapon: Walsh V. Union, 13 Or. 589. Power to improve, lay out, or establish streets must be strictly followed: N. P. L. & M. Co. v. East Portland, 14 Or. 3; N. P. T. Co. v. Portland, 14 Or. 24. Legislature may provide for city water supply by direct act, without submitting the matter to vote of the people of the city: David v. Portland Water Co., 14 Or. 98. Supply of pure water to the metropolis of the state is a . matter of public moment, as distinguished from private municipal affairs, and so is within the province of the legislature: Id. 414 Municipal Corporations. Municipal Corporations (continued). Amendment to charter, conferring additional powers, but not clianging existing provisions, is not within article 4, section 22, of the constitution, and need not set forth the full act: Id.; Sheridan v. Salem, 14 Or. 328. Act of 1885, providing for licensing liquor dealers, has the effect of amending charter of Astoria, the power to license having been already granted to that city by char- ter, and is void as not complying with the constitutional provisions regarding amendments: State v. Wright, 14 Or. 365. Powers are to be strictly construed, but within their au- thority their ordinances have the effect of statutes: Burmeister v. Howard, 1 W. T. 207. Seattle was incorporated under special act, which, whether within the legislative power or not, was subsequently ratified by act of Congress: Seattle v. Yesler, 1 W. T. 571. The legislative grant of power to said city is within sec- tion 1924, Revised Statutes of the United States: Id. Town may make assessments for local improvements a lien on property benefited, but cannot make the tax a personal charge: Id. Act to incorporate Olympia, 1883, empowering the city to license, regulate, and restrain drinking-saloons, re- pealed the act of 1873, limiting its powers in those respects: Hadlan v. Olympia, 2 W. T. 340. Whether the amount of the license, three hundred dollars, fixed by the city, exceeded its police powers is ques- tioned: Id. 2. Liabilities. City of Portland is not liable under its charter for injury to a person by defective street: O'Harra v. Portland, 3 Or. 525. Notice, actual or implied, must be alleged and proved to hold a city liable for such injury: Mack v. Salem, G Or. 275. Liabihty on contract for street improvement is not con- fined to funds realized from assessment on abutting property, unless so provided in the contract: Frush v. Portland, G Or. 281. Charter provision exempting city from liability, but not Municipal Corporations. 415 Municipal Corporations (continued). exonerating officers from liability for willful neglect, held to render trustees liable for injury by non-repair of bridge: Rankin v. Buckman, 9 Or. 253. In such case, lack of funds is matter of defense, and need not be anticipated by the complaint: Id. City liable for damages for injuries received on defective walk, though the claim was not first presented to the council, which has by its charter to pass upon claims against the city: Sheridan v. Salem, 14 Or. 328. Unless exempted from liability by its charter, city is lia- ble under section 347 of the Code (sec. 350, Hill's A. L.) for injuries received in consequence of neglect of oflficers to keep streets in repair: Id. This rule criticised, but adhered to on the principle of stare decisis: Id. City is liable to abutting lot-owner for injury to his lot by negligence in improvement of street by contractor working under supervision of the city surveyor: Seattle V. Buzby, 2 W. T. 25. In such case, contractor is servant of the city, and the rule of respondeat superior applies: Id. City is liable for injury resulting from neglect to repair sidewalks, following the decisions of the United States Supreme Court: Hutchinson v. Olympia, 2 W. T. 314. 3. Officers and Agents. Rules of order adopted by common council are binding on that body: State v. Hoyt, 2 Or. 246. Offices of councilman and marshal are incompatible, and cannot be held by same person: Id. City recorder ex officio justice of the peace within the city limits: Ryan v. Harris, 2 Or. 175; Craig v. Mosier, 2 Or. 323; Sellers v. Corvallis, 5 Or. 273. Jur4sdiction, powers, and salary of police judge: State v. Wiley, 4 Or. 184; Portland v. Denny, 5 Or. 160; Adams V. Multnomah Co., 6 Or. 116. Legislature may fix compensation of officers of city by charter or amendment thereto, and the method and source of payment: Adams v. Multnomah Co., 6 Or. 116. Public officers given power and authority to do an act are bound to perform it: Rankin v. Buckman, 9 Or. 253. 416 Municipal Corporations. Municipal Corporations (continued). Chief of police, acting as constable, cannot retain the fees earned: Portland v. Besser, 10 Or. 242. Auditor and clerk has no power to make evidence by his certificate, excepting to authenticate by his certificate copies of records of which the law makes him custo- dian: N. P. T. Co. V. Portland, 14 Or. 24. "Water committee," provided by act amendatory of Port- land charter, are not ofiicers elected or appointed under the constitution, and need not take oath of office: David V. Portland Water Co., 14 Or. 98. Such persons are not "officers" within the meaning of arti- cle 15, section 2, and sections 6 and 7, article 8, of the constitution, regarding terms of office: Id. 4. Streets, and Street Assessments. Assessment on adjacent lots for their share for street im- provement is in the nature of a tax: King v. Portland, 2 Or. 146. Legislature and the council have power to so assess ad- jacent lots, and courts will not review the exercise of the discretionary power of the legislature to provide the mode of assessment for such expenses: Id. Order of city council directing a street, once duly dedi- cated, to be fenced up is void: Portland v. Whittle, 3 Or. 126. City of Portland is exempted from liability for injury to a person by defects in street by its charter:' O'llarra v. Portland, 3 Or. 525. Appeal from city council to Circuit Court in laying out street must be from the whole judgment, and the pro- ceeding is tried de novo: Portland v. Kamm, 5 Or. 362. Paramount control of streets and highways is in the legis- lature: East Portland v. Multnomah County, 6 Or. 62; P. & W. V. R. R. Co. V. Portland, 14 Or. 188. State may transfer its control thereof within a city to the municipality: Id. Notice of the defect, express or implied, must be alleged and proved to hold city liable for injury: Mack v. City of Salem, 6 Or. 275. Liability on contract for street improvement is not con- fined to funds realized from assessment on abutting property, unless so provided in the charter: Frush v. East Portland, 6 Or. 281. Municipal Corporations. 417 Municipal Corporations (continued). Provision in charter, that proceedings shall be presumed regular, does not dispense with the necessity for the record showing that notice has been given: Van Sant V. Portland, 6 Or. 395. Notice is jurisdictional, and in its absence from the record,, the presumption cannot aid: Id. Person owning a building, damaged by widening streets, can recover for improvements put thereon after the viewers report, and before the adoption of the report by . the council: Portland v. Lee Sam, 7 Or. 397. Not necessary under the provisions of the Portland charter to declare sewer necessary, or create taxing district, be- fore proceeding to contract for building a sewer: Strow- bridge v. Portland, 8 Or. 67. Provisions in charter of Portland relating to streets do not apply to sewers: Id. City may grade street at the approach to the river to facilitate travel or landing from boats, but cannot con- fer right to private person to do so to the injury of adjacent lots: Price v. Knott, 8 Or. 438. Adjacent lot-owner may enjoin person threatening to grade down a street to the permanent injury of adjacent lots: Id. Trustees held personally liable for neglect to repair streets,, where under the charter they have power to repair: Rankin v. Buckman, 9 Or. 253. Power to repair imposes a duty to keep streets in repair:; Id.; Hutchinson v. Olympia, 2 W. T. 314. Road included in the limits of a city by the legislature- does not thereby become a street: Heiple v. East Port- land, 13 Or. 97. Road is a public highway; street is a road in a city or village: Id. Use^and improvement by a city of a road within the limits of the city is not sufficient to prove acquiescence of abutting owners in its use as a street for statutory period: Id. Facts examined and held not to show intent to dedicate such road as a street: Id. Charter requiring name of owner, or that owner is un- known, to be stated in the assessment roll in assess^ Or. Diq.— 27 418 Municipal Corpokations. Municipal Corporations (continued). ments for street improvements, an assessment to the name of a stranger to the title is void: Dowell v. Port- land, 13 Or. 248; Hawthorne v. East Portland, 13 Or. 271. After void assessment and sale, city cannot refund pur- chase-money, reassess and sell again; its power is ex- hausted in the first proceeding: Id. Purchaser at such void sale takes nothing, and cannot recover back his money: Id. In the absence of express authority, city cannot make a valid reassessment to cure defects: Id. Assessment to B. F. Dowell, when Fanny Dowell was owner, is void: Id. So, assessment to "J. C. Hawthorne, Est. of," although J. C. Hawthorne was dead at the time: Hawthorne v. Portland, 13 Or. 271. Notice of street improvement must state definitely the kind of improvement proposed: Id. Tax for street improvement is not against the person, but the property: Seattle v. Yesler, 1 W. T. 571. Effect of provision in charter permitting city to take cer- tificate of county clerk as to who is owner for the pur- pose of assessment: Id. Party encouraging street improvement abutting his prop- erty is estopped to deny its legality: Id. Common council can improve street only upon implied assent of abutting property owners, and must strictly follow the method indicated in its charter: N. P. L. & M. Co. V. East Portland, 14 Or. 3; N. P. T. Co. v. Port- land, 14 Or. 24. City cannot undertake to pay for such improvement out of its general funds, but may become liable generally, upon failure to strictly comply with the charter method of realizing the special fund: Id. City cannot modify a contract for street improvement pre- viously made: Id. But complaint alleging such modification, which is denied by the answer, is good after verdict: Id. Where six months have elapsed after completion of a con- tract, and city has neither approved or disapproved of the work, as provided by the contract, city cannot be Municipal Corporations. 419 Municipal Corporations (continued). heard to make objection that it has not yet acted thereon: Id. Qualification of viewers must appear upon the record, and neither a finding by the council or the affidavit of the viewers will supply the defect: N. P. T. Co. v. Portland, 14 Or. 24. Provision in charter that proceedings shall be deemed regular until contrary is shown applies only to proceed- ings had after jurisdiction is acquired: Id. • Grant by the legislature to a railroad of land in a city, previously dedicated to the public as a levee for depots and docks, held not inconsistent with the dedication: P. & W. V. R. R. Co. V. Portland, 14 Or. 188. The right of municipality in its streets and public prop- erty is not absolute; the property is public, and the use thereof is within the control of the legislature: Id. But the legislature cannot divert such property from the dedication; and upon such diversion any person inter- ested is entitled to injunction to prevent it: Id. Board of trustees of Olympia had power to vacate an alley on petition of all the abutting property owners: Bur- meister v. Howard, 1 W. T. 207. Upon vacation of street or alley, the fee to the soil vests in the abutting owners, unless other disposition is made thereof by petition of all abutting owners: Id. If such other disposition be made, the lot-owners are es- topped from setting up any right in contravention thereof: Id. Upon replatting a block and alley, upon such petition, by city ordinance, the lot-owners are estopped from ques- tioning rights acquired under such replatting: Id. Boundaries fixed by ordinance in such replatting cannot ^e subsequently questioned, and all parties are charged with notice of the ordinance: Id. Town in Washington Territory may make assessments for grading street a lien on property affected, but cannot make the tax a personal charge:- Seattle v. Yesler, 1 W. T. 572. The word "assessment" in the Organic Act is employed in a common and general sense: Id. 420 Municipal Corporations. Municipal Corporations (continued). Such assessments are not in violation of the provision re- quiring equahty and uniformity in taxation: Id. Town making assessments for street improvement must apportion to each lot its share of the whole cost in pro- portion as the value of each lot to the whole: Id. Municipality must fix a method of determining such pro- portion and facts: Id. The assessment in this case in neither uniform nor in ac- cordance with the value of the property taxed: Id. The ordinances regulating assessments are in violation of section 1924, Revised Statutes of the United States, and void: Id. Sidewalks are part of streets: Hutchinson v. Olympia, 2 W. T. 314. Provision in charter of Olympia, for petition of majority of property owners, or two thirds vote of council, ap- plies to construction of sidewalks, and not to the repair thereof: Id. 5. Actions and Suits. Resident and tax-payer not competent juror in damage suit against city: Garrison v. Portland, 2 Or. 123. Nor in action to lay out street, and assess damages and benefits: Portland v. Kamm, 5 Or. 362. Verdict in such action must state damages and benefits separately: Id. Appeal from the city council to the Circuit Court in such action is from the whole judgment, and the proceeding is tried de novo: Id. Such verdict is sufficient if the amount of the damages and benefits can be ascertained therefrom: Portland v. Lee Sam, 7 Or. 397. Corporation as plaintifi" in action for public nuisance must allege and prove special damage: Roseburg v. Abra- ham, 8 Or. 509. Evidence and instructions as to damages and benefits in action to lay out street: Portland v. Kamm, 10 Or. 383. In pleading city ordinance (prior to 1885), it must be set out in cxtcnso so far as relied on: Pomeroy v. Lappeus, 9 Or. 3G3; Nodine v. Union, 13 Or. 587. In an action for damages for injury sustained upon a de- fective walk, evidence of repairs made by the city offi- Negligence. 421 Municipal Corporations (continued). cers, tliough not shown to be by order of the council, may go to the jury upon the question whether the locus was a city thoroughfare: Sheridan v. Salem, 14 Or. 328. In proceeding to abate nuisance in one of its streets, city is clothed with the attributes of sovereignty, and may prosecute its suit in the first instance by bill in equity: Moore v. Walla Walla, 2 W. T. 184. On defendant demurring in such suit on the ground that plaintiff has an adequate remedy at law, if the demur- rer be overruled, plaintiff must demand jury trial, or he waives the objection: Id. Murder. See Homicide. Mutual Covenants. See Contracts; Deeds. Naturalization. One who obtains his final papers becomes a voter at time of naturalization: Darragh v. Bird, 3 Or. 229. Navigable Streams. See Water and Watercourses. Necessaries. See Husband and Wife. Negligence. See Damages; Master and Servant; Munici- pal Corporations; Railroads. 1. Gener.\lly. 2. Pleading. 3. Evidence. 4. Contributory Negligence. 1. Generally. Carrier cannot limit his liability for negligence of himself or servants: Seller v. Steamship Pacific, 1 Or. 400. Surgeon responsible for ordinary skill; what is ordinary skill: Heath v. Glisan, 3 Or. 64; Boydston v. Giltner, 3 Or. 118; Williams v. Poppleton, 3 Or. 139. Not liable for error in judgment in case of doubt: Id. Negligence of agent, when principal liable for personal ^injuries inflicted: Oliver v. N. P. T. Co., 3 Or. 84; French v. Cresswell, 18 Or. 418 County liable for negligence of supervisor of roads in not repairing bridge: McCalla v. Multnomah County, 3 Or. 424; Ileilner v. Union County, 7 Or. 83. Liability of county for injury occasioned by defective , bridge, under section 347 of the Code: Id. City of Portland is not liable, under its charter, for injury 422 Negligence. Negligence (continued). occasioned by defective streets: O'Harra v. Portland, 3 Or. 525. Employer providing and controlling machinery is bound to see that it is suitable: Stone v. Oregon City Mfg. Co., 4 Or. 52. If employee is injured by defect unknown to him, which employer might have cured by exercise of ordinary care, employer liable: Id. Otherwise, where workman knowingly works with such defective machinery: Id. Railroad train not bound to stop on seeing a man walking on the track; may presume he will get out of the way on sounding the alurm: Cogswell v. Oregon and California R. R. Co., 6 Or. 417. Owner of a steamboat is liable for injury to a passenger landing at an intermediate point, where the boat stops before reaching his destination: Dice v. W. T. & L. Co., 8 Or. 60. Liability of officers of a city for neglect to repair streets, where city is exempt by charter: Rankin v. Buckman, 9 Or. 253. Of railroad company in negligently constructing and operating a ditch, whereby adjoining lands are over- flowed: Davidson v. Oregon and California R. R. Co., 11 Or. 136. When negligence causing death is manslaughter: State v. Justus, 11 Or. 178. Rule of liability of master for negligence of fellow-ser- vants and vice-principals: Willis v. Oregon R'y & Nav. Co., 11 Or. 257. Foreman of a gang of laborers erecting a shed under the direction of a superior is a fellow-servant with the other laborers: Id. In the absence of statute giving railroad company power to lease the road, the company is liable for the torts of the lessee tliereof: Lakin v. R. R. Co., 13 Or. 436. Negligence of a construction company, occasioning death, in possession of and operating railroad for traffic pur- poses, employed by the owners of a railroad, renders the owners liable: Id, Provision in city charter requiring claims to be presented Negligence. 423 Negligence (continued). to and audited by council docs not apply to claim for damages for injury occasioned by neglect to repair street: Sheridan v. Salem, 14 Or. 328. City is liable under section 347 of the Code (sec. 350, Hill's A. L.), for such injury, unless exempted by its charter: Id. City is liable to the owner of an abutting lot for injury thereto by negligence of contractor in improving street, who is working under directions of city surveyor: Se- attle V. Buzby, 2 W. T. 25. The contractor is the servant of the city in such case, and the rule respondent svperior applies: Id. Following the decisions of the United States Supreme Court, a city is liable for injury occasioned by neglect to keep streets in repair: Hutchinson v. Olympia, 2 W. T. 314. 2. Pleading. Statement in complaint against landlord for injuries to a person occasioned by the ill repair of the building, that plaintifif exercised due care, is insufficient; plaintiff must show that the unsafe condition of the building is not his fault: Kahn v. Love, 3 Or. 206. In an action against a city for injury by defective side- walk, notice of the defect, express or implied, must be alleged: Mack v. Salem, 6 Or. 275. So in an action against a county for injury by defective bridge: Heilner v. Union Co., 7 Or. 83. Facts constituting the negligence must be alleged: Id. Contributory negligence is a defense, and should be averred as such: Grant v. Baker, 12 Or. 329. To recover exemplary damages, the complaint must show that the act was done maliciously, or was the result of willful misconduct, or reckless indifference to the rights of others: Grant v. Baker, 12 Or. 329. 3. Evidence. Expert's opinion of the general skillfulness of surgeon not admissible; otherwise as to the degree of skill used in the operation: Heath v. Glisan, 3 Or. 64; Boydston v. . Giltner, 3 Or. 118: Williams v. Poppleton, 3 Or. 130. Refracture of bone by surgeon is not of itself proof of bad surgery: Boydston v. Giltner, 3 Or. 118. 424 Negligence. Nc^^ligence (continued). But if done with gross ignorance, renders surgeon liable: Id. Reputation for skill of surgeon not admissible: Williams V. Poppleton, 3 Or. 139. The making of a quitclaim deed under the circumstances of the case was such evidence of negligence as to estop grantor from asserting after-acquired title: Dorris v. Smith, 7 Or. 267. Price paid is no evidence of value of horses killed on rail- road: Holstine v. 0. & C. R. R. Co., 8 Or. 163. In action for injury to passenger, evidence of former acci- dent at same place inadmissible: Davis v. 0. & C. R. R. Co., 8 Or. 172. Burden of proof is on the party charging negligence: Walsh v. Or. R'y & Nav. Co., 10 Or. 250. What is "ordinary care" depends upon the particular cir- cumstances: Id. When negligence is presumed as a proposition of law, and when to be left to the jury: Id. It is the right of the jury to weigh the evidence of negli- gence: Id. Plaintiff need not prove absence of contributory negli- gence, in action for injury by falling off an elevated un- guarded plank road: Grant v. Baker, 12 Or. 329. Narrations of the circumstances immediately after eject- ment from a train, in the absence of defendant, are not admissible as part of the res gestse: Sullivan v. Or. R'y & N. Co., 12 Or. 392., In action by person ejected from a train, he must prove not who was owner, but who was using the train at the time: Id. Evidence that city oflScers improved the sidewalk at dif- ferent times may go to the jury on the question whether the locus is a municipal thoroughfare: Sheridan v. Salem, 14 Or. 328. Duty of trainmen to have greater care in passing a place where they know persons are accustomed to walk on the track: Cassida v. 0. R. & N. Co., 14 Or. 551. Evidence of the fact that persons are in the habit of travel- ing up and down the track at the place where the acci- Negligence. 425 Negligence (continued). dent occurred should go to the jury on the question of negligence: Id. 4. CONTKIBUTORY NEGLIGENCE. Slight negligence of plaintiflF will not excuse gross negli- gence in the defendant: Bequette v. People's Trans. Co., 2 Or. 200; Ilolstine v. 0. & C. R. R. Co., 8 Or. 1G3. Action by tenant for injury from defects in building; plaintiff must show that the condition of the building is not his fault: Kahn v. Love, 3 Or. 206. Plaintiff suing for damages must not have been guilty of contributory negligence: Dufer v. Cully, 3 Or. 377. Person employed about dangerous machinery bound to use his thinking faculties: Stone v. Or. City Mfg. Co., 4 Or. 52; Hurst v. Burnside, 12 Or. 520. It is gross negligence for a deaf person to walk along a railroad track: Cogswell v. Or. & C. R. R. Co., 6 Or. 417. Slight negligence will not prevent recovery, where negli- gence complained of was gross: Holstine v. 0. & C. R. R. Co., 8 Or. 163. Drunkenness of the plaintiff's intestate, unless the proxi- mate cause, no defense: Davis v. 0. & C. R. R. Co., 8 Or. 172. Passenger has no right to presume ferry-boat landed when chain-guard is down, when notified personally other- wise: Id. Question of contributory negligence in brakeman in put- ting his head out of window of car should be left to the jury: Walsh v. Or. R'y & Nav. Co., 10 Or. 250. Contributory negligence is a defense, and should be pleaded as such: Grant v. Baker, 12 Or. 329. Instruction as to duty of plaintiff to think and look while approaching dangerous machinery about which he was ettiployed, hold proper: Hurst v. Burnside, 12 Or. 520. The plaintiff claiming that there was an emergency re- quiring prompt action, in which ordinary prudence could not be exercised, must ask instruction on that point, or he cannot complain if not given: Id. The test is, whether a man of ordinary prudence would 'have done the act under all the circumstances: Id. In an action by one injured while coupling cars loaded with projecting rails, held that upon the facts shown 426 Negligence. Negligence (continued). nonsuit should liave been granted: Scott v. Or. R'y & Nav. Co., 14 Or. 211. Employee, continuing in an employment where extra haz- ardous modes of doing the business are adopted as- sumes the attendant risk: Id. In such case, he cannot be heard to say he was exposed to danger of an unusual or extraordinary character: Id. Same degree of prudence is not to be expected in a small child as in adults: Cassida v. Or. R'y & Nav. Co., 14 Or. 551. Evidence that, being frightened by cattle, the intestate, aged seven, sought refuge on the railroad trestle, where she was killed by defendant's train, is admissible to re- but contributory negligence: Id. Failure of steamship to exhibit lights when approaching another, which is complying with the law in this respect, does not excuse the latter from faults contributing to collision: Meigs and Talbot v. Steamship Northerner, 1 W. T. 78. Where both vessels contributed equally to the fault, the damage should be shared by both: Id.; Puget Sound C. Co. v. Taylor, 2 W. T. 93. Negotiable Instruments. See Bills and Notes. New Trial. Aflidavits of jurors will not be received to impeach their verdict: Cline v. Broy, 1 Or. 89; Newby v. Territory, 1 Or. IGo; Or. Cas. R. R. Co. v. Or. Steam Nav. Co., 3 Or. 178. Omission of clerk to file bill of particulars, no ground for: Id. Evidence must be new, not cumulative: Cutter v. Steam- ship Columbia, 1 Or. 101; Lander v. Miles, 3 Or. 40; McKilver v. Manchester, 1 W. T. 255. Motion must be made in the trial court: Id. Newly discovered evidence to impeach witness on former trial, no ground for new trial: Territory v. Latshaw, 1 Or. 146. Where two courts have concurrent jurisdiction to grant, a party cannot apply to one, and on refusal, to the other, for new trial: Newby v. Territory, 1 Or. 163. Not granted on doubtful and disputed questions of fact: New Trial. 427 New Trial (continued). Lander v. Miles, 3 Or. 40; Kearney v. Snodgrass, 12 Ur. .jll; Cfore v. Moses, 1 W. T. 7 Diligence must be sliown, and that the new evidence could not have been had: Id. Motion must be accompanied by affidavit of witness, or Its al)sonce accounted for: Id. Evidence of material facts not proved or offered is not cunmlative: Id. "Made diligent inquiry," not sufficient in affidavit; facts must be stated: Id. Where it is evident that the jury have disregarded in- structions to mjury of party, new trial granted: Brown V. Cahalm, 3 Or. 45. Where there was some evidence of damage to the amount found, new trial denied: Williams v. Poppleton, 3 Or. Not granted merely because judge differs from jurv as to preponderance of evidence: Or. Gas. R. R Co "v Or Steam Nav. Co., 3 Or. 178. • • • Twenty days after filing decision rendered in vacation alloued for filing motion for new trial: Arrigoni v Johnson, 6 Or. 1G7. fo ^ v. Order granting or denying motion for new trial is not re- viewable on appeal or error: Bowen v. State, 1 Or 270- ?^f\y\r^,^^^"g^^' 2 Or. 227; State v. Wilson, G Or! 428; Ha lock v. Portland, 8 Or. 29; State v. McDonald, ?9 n ]r': ^'?*' "'■ ^'^^'' ^^ ^'- ^-'^^' ^^^^^ ^- Mackey tT J' ^'^1'' ^^^^^"^y V- Snodgrass, 12 Or. 311; State v iiecker, 12 Or. 318; Wississimi v. Territory, 1 W T 6- w"" W T nf't o "^''' ^ ^^- ^- -^- McCorm'ick v! 1 NV. 1. 603; Page v. Rodney, 2 W T 461 Such potion is addressed to the discretion of the court- foR TT-.f'\''^"^^' ^ ^'- ^^'' ^^^*^ ^- ^^'il^^on, 6 Or.' 428; Hallock V. Portland, 8 Or. 29; State v. McDon- a d, 8 Or. 113; State v. Drake, 11 Or. 396; State v Mackey, 12 Or. 154; Kearney v. Snodgrass, 12 Or. 311 • J W ' I ^i°T^ ^^^"« ^'«-' 1'^ Or. 28; Gore v. Moses,' 1 vv. 1. /; .Smith V. United States, 1 W. T 26'>- Pqcro V. Rodney, 2 W. T. 461. ' ' ^ The order granting or refusing can be reviewed only in 428 New Trial. New Trial (continued). case of abuse of discretion: State v. Drake, 11 Or. 396; Gore V. Moses, 1 W. T. 7; Page v. Rodney, 2 W. T. 461. Motion, on the ground that a juror was not a citizen, being denied, the order not reviewable on appeal: State V. McDonald, 8 Or. 113. Justice cannot set aside his judgment, and grant new trial: Griffin v. Pitman, 8 Or. 342. Motion and proceedings on, no part of the judgment roll, and not considered on appeal unless made a part thereof by bill of exceptions: Or. R'y Co. v. Wright, 10 Or. 162; Chung Yow v. Hop Chong, 11 Or. 220; State V. Drake, 11 Or. 396; McAllister v. Territory, 1 W. T. 360; but see Kearney v. Snodgrass, 12 Or. 311; State V. Becker, 12 Or. 318. Co-defendant jointly indicted, having been acquitted and become a competent and material witness, qusere, whether it is ground for new trial: State v. Drake, 11 Or. 396. Motion for new trial, and exceptions based thereon, are not properly a part of a bill of exceptions; though made a part thereof cannot be reviewed on appeal: Brown v. State, 1 Or. 270; Kearney v. Snodgrass, 12 Or. 311; State V. Becker, 12 Or. 318; Jones v. Wiley, 1 W. T. 603. That juror drank intoxicating liquor during the trial, as a ground for new trial, will not be considered on ap- peal: State v. Becker, 12 Or. 318. Refusal of new trial for tampering with juror not review- able on appeal: Tucker v. Flouring ^lills Co., 13 Or. 28. Courts should be reluctant to set aside verdict where there is evidence to support the verdict, or the evidence is of doubtful interpretation: Gore v. Moses, 1 W. T. 7. New trial should not be granted for newly discovered evi- dence, unless it is apparent such evidence would alter the verdict: Leschi v. Territory, 1 W. T. 13; McKilver V. Manchester, 1 W. T. 255. Where a party has duly excepted to a ruling, it is not necessary in order to preserve it that it should be renewed in a motion for new trial or in arrest of judgment: Tol- mie V. Dean, 1 W. T. 46. Nonsuit. 429 New Trial (continued). New trial should not be granted when it is apparent by the proofs that it would avail nothing: Id. Where there was some evidence to sustain verdict, court will not set it aside: Williams v. Miller & Co., 1 W T. 88. Erroneous ruling that worked no prejudice, no cause for new trial: Newberg and Abrams v. Farmer, 1 W T 182. What the newly discovered evidence relied on is, must be ■ made clearly to appear: McKilver v. Manchester, 1 W. T. 255. Legislature cannot, in Washington Territory, grant right of appeal from an order granting or refusing new trial: McCormick v. W. W. & C. P. R. R. Co., 1 W. T. 512. Provisions of chapter 1, page 20, acts of 1875, regarding petition for new trial after judgment, do not apply to criminal cases: Thompson v. Territory, 1 W. T. 548. Motion for, based on insufficiency of the evidence or be- cause the verdict is contrary to law, must be upon the written statement of the grounds relied on required by statute, section 582, Civil Practice Act: Jones v. Wiley 1 W. T. 603. If no such statement be made, the exception to the rul- ing of the court, refusing a new trial, is void, and a bill of exceptions based thereon fails: Id. Exclusion of witness for drunkenness no ground for new trial, unless party shows the materiality of the testi- mony and applies to the court for a continuance until such time as witness will be able to testify: Fox v. Ter- ritory, 2 W. T. 297. Nonjoinder. See Parties. Nonsuit. Not granted unless there is an entire lack of evidence to entitle plaintiff to recover: Tippin v. Ward, 5 Or. 450; Southwell V. Beezley, 5 Or. 458; Salmon v. Olds and King, 9 Or. 488; Ward v. Moorey, 1 W. T. 104. Answer in equity held not sufficient pleading of counter- claim to prevent nonsuit: Dove v. Ilayden, 5 Or. 500. Where plaintiff's evidence is insufficient to sustain a ver- dict, iionsuit is properly granted: Cogswell v. Or. & Cal. R. R. Co., G Or. 417. 480 Nonsuit, Nonsuit (continued). Error in overruling motion for, is waived by putting in evidence by way of defense, which supplies the defect in plaintiffs proof: Bennett v. N. P. Express Co., 12 Or. 49. Incompetent evidence, admitted without objection, is treated as competent on motion for nonsuit: Jacobsen V. Siddal, 12 Or. 280. Must be such an entire failure of proof as would warrant the court in setting aside a verdict to authorize nonsuit: Grant v. Baker, 12 Or. 329. The word " may " is construed as " must " in the statute providing that v/hen the plaintiff on the trial fails to prove his case the court may dismiss: Tolmie v. Dean, 1 W. T. 46. Notice. See Animals; Appeal and Error; Elections; Fer- ries; Forcible Entry and Detainer; Guardian and Ward; Highways; Jurisdiction; Landlord and Tenant; Liens; Pleading; Possession; Practice. What sufficient posting of notice required to be posted at the court-house, before county commissioners had se- lected a court-house: Drew v. Gant, 1 Or. 197. What sufTicient notice of outstanding equities to put pur- chaser on inquiry: Stannis v. Nicholson, 2 Or. 332. Purchaser, with notice of equitable rights, will not be per- mitted to protect himself against them: Id. Notice of alteration of note, or circumstances sufficient to put payee on inquiry, will prevent his recovery against joint makers who did not consent to the alteration: Willis V. Wilson, 3 Or. 308. Whatever is sufficient to put purchaser on inquiry oper- ates as notice: Bohlman v. Coffin and Carter, 4 Or. 313; Carter and Mason v. Portland, 3 Or. 339; Musgrove v. Bonser, 5 Or. 313; Richards v. Snyder and Crews, 11 Or. 501; Mann v. Young, 1 W. T. 454. Actual and unequivocal possession is notice of a claim of right or equities: Id.; Skellinger v. Smith, 1 W. T. 369. Unrecorded deed carries title, as against subsequent pur- chaser with notice: Musgrove v. Bonser, 5 Or. 313. Deed not entitled to record, but recorded, may operate as actual notice: Id. Notice. 431 Notice (continued). Purchaser, without notice of defect of title, has lien for his improvements: Hatcher v. Briggs, G Or. 31. In an action against a city for injury by defective side- walk, notice must be alleged and proved: Mack v. Salem, 6 Or. 275. Purchaser, without notice of claim of state for lien for costs in criminal case, takes the property freed from the lien, unless the judgment is docketed within reason- able time: State v. Munds, 7 Or. 80. In an action against a county for injury by defective bridge, notice must be alleged and proved: lieilner v. Union County, 7 Or. 83. No notice of intention to redeem land sold at tax sale is necessary: Rich v. Palmer, 7 Or. 133. Where one buys land, he is presumed to buy with notice of the water rights in use thereon: Coffman v. Robbins, 8 Or. 278. Constructive notice not imputed to purchaser in good faith at execution sale, where there is no judgment to support the same: Hoxter v. Poppleton, 9 Or. 481. No notice need be proved against a purchaser of public lands, the title of which is already vested in another; rule of caveat emptor applies: Wardwell v. Paige, 9 Or. 517. Attaching creditor stands in all respects as a bona fide purchaser as to notice of unrecorded deed: Boehreinger v. Creighton, 10 Or. 42. Persons erecting improvements, with notice of adverse claim to the land, cannot complain of the loss he will suffer if owner is permitted to assert his rights: God- dard v. Parker, 10 Or. 102. Purchaser at execution sale, without notice of a claim of a ^antee of the judgment debtor under a defective deed, has rights superior to such grantee: Bloomfield V. Humason, 11 Or. 229. To set aside fraudulent conveyance, where a valuable consideration was paid, actual notice to the grantee must be proved: Coolidge and McClaine v. Heneky and Forward, 11 Or. 327. But actual notice may be inferred from circumstances: Id. 432 Notice, Notice (continued). Purchaser claiming protection of equity on the ground of good faith and the want of notice must plead and prove the facts independently of recitals in his deed: Richards v. Snyder and Crews, 11 Or. 501. Purchaser under a quitclaim deed is not a bona fide pur- chaser without notice: Baker v. Woodward, 12 Or. 3. Grantee of legal title, with notice of outstanding equitable interest, takes subject thereto: Id. Judgment lien, taken with notice of prior unrecorded deed, has no priority: Id. Quitclaim deed in chain of title operates as notice to pur- chaser sufl5cient to put him on inquiry: Id. In contest between legal titles in ejectment, defendant may assume the burden and prove notice or want of consideration invalidating plaintiff's title: Mclntyre v. Kamm, 12 Or. 253. How far lis pendens operates as notice in Oregon : Walker V. Goldsmith, 14 Or. 125. Formal notice of charges against a pilot need not be served upon him by the board of commissioners; suffi- cient if he have opportunity to explain and defend: Snow V. Reed, 14 Or. 342. Possession under color of title operates as notice to the extent of the defined boundaries: Phillippi v. Thomp- son, 8 Or. 428; Joy v. Stump, 14 Or. 361. Actual notice includes knowledge of facts sufficient to put upon inquiry: Manaudas v. ]\Iann, 14 Or. 450. Possession under unacknowledged deed operates as actual notice: Id. Party in court must take notice of all orders made in the case and the filing of all pleadings: Williams v. Miller & Co., 1 W. T. 88. Duty of consignee to give notice to carrier when, on re- ceiving goods by freight, he discovers that they were damaged in transit: Williams v. Steamship Columbia, 1 W. T. 95. Privy to a deed is bound by the notice it imparts, whether possessed of actual notice or not: Skellinger v. Smith, 1 W. T. 369. Open, notorious, and exclusive possession is notice to the world of the title of the one in possession: Id. Nuisances. 433 Notice (continued). Purchaser is fairly chargeable with information which he would have obtained by inquiring into matter!? brought to his notice: Shockley v. Brown, 1 W. T. 454. Actual prior notice of unrecorded chattel mortgage does not give such mortgage precedence over the attachment of a creditor of the mortgagor: Baxter v. Smith, 2 W. T. 97. Notice to Quit. See Landlord and Tenant. Novation. Where contract to pay debt of another is founded on new consideration, subsisting liability of original debtor no defense: Hedges v. Strong, 3 Or. 18; Ludwick v. Wat- son, 3 Or. 256. Agreement to substitute another agreement, void unless carried into execution and accepted in satisfaction: Smith V. Foster, 5 Or. 44. Contract based on agreements involving other parties not valid, except there has been a novation: Shattuck v. Smith, 5 Or. 125. A promise by A, for valuable consideration to pay his debt due B to C, can be enforced against A by C: Baker and Smith v. Eglin, 11 Or. 333. Nuisances. Indi\'idual may maintain injunction suit for nuisance,. where specially and irreparably damaged: Parrish v. Stephens, 1 Or. 73; Luhrs v. Sturtevant, 10 Or. 170. Requisites and sufficiency of indictment for maintaining: State v. Bergman, 6 Or. 341; State v. Ilume, 12 Or.. 133. Authority by charter and ordinance in city to punish for,. does not oust jurisdiction of state courts: Id. In an action to abate, where plaintiff recovers damages, he4« entitled to a warrant to have the nuisance abated: Marsh v. Trullinger, 6 Or. 356. Damages for a nuisance in damming a stream and over- flowing plaintiff's land: Id. Person specially damaged by obstructing highway with a toll-gate may recover: Milarkey v. Foster, 6 Or. 378. What allegations are sufficient to show special damage in such case: Id. Costs under section 539, subdivision 1, of the Code (sec. Or. Dig.— 28 434 Nuisances. Nuisances (continued). 549, Hill's A. L.), should be awarded to the party who recovers judgment, the right to the possession of realty being in issue in the action: Bentley v. Jones, 7 Or. 108. Complaint in action for damages for public nuisance must show special damage to the plaintiff: Roseburg v. Abra- ham, 8 Or. 509; Luhrs v. Sturtevant, 10 Or. 170. Corporation as plaintiff in such action stands on the same footing as private person: Luhrs v. Sturtevant 10 Or. 170. To divert or obstruct watercourse is a private nuisance for which equity affords remedy: Shively v. Hume, 10 Or. 76. Complaint held not sufficient to warrant interference with public nuisance at suit of private person: Luhrs v. Sturtevant, 10 Or. 170. When equity will enjoin maintaining obstructions in pub- lic highway: Id.; Smith v. Gardner, 12 Id. 221; Walls V. Foster, 13 Or. 247. Affidavits filed with motion for order to abate are part of the judgment roll and transcript on appeal: Ankeny v. Fairview Milling Co., 10 Or. 390. Such order must not order defendant to abate in partic- ular manner, but must simply order a warrant to abate to issue: Id. Duty of sheriff to remove nuisance with as little injury as possible: Id. In making order to abate, court may describe the nui- sance from its own knowledge derived from the facts proved on the trial, though the record does not identify: Id. Indictment for obstructing highway; when termini must be alleged and proved: State v. Hume, 12 Or. 133. On verdict for plaintiff, warrant to abate does not issue as a matter of course: Kothenberthal v. City of Salem Co., 13 Or. 604. In such case, it may appear to the court that the nuisance has ceased or the remedy is inadequate, and the party may be left to seek an effective remedy in equity: Id. A city proceeding to abate a nuisance is clothed with attri- butes of sovereignty, and may prosecute its suit in the Offices and Officers. 435 Nuisances (continued). first instance by bill in equity: Moore v. Walla Walla, 2 W. T. 184. If defendant demurs to the complaint in such case on the ground that plaintiff has a remedy at law, on the over- ruling of his demurrer and before going to trial he must demand a jury trial, or he waives the objection: Id. Nunc pro Tunc Orders. See Courts; Judges; Judgments and Decrees; Jurisdiction; Practice. Oath. See Aflidavit; Jury and Jury Trial. Obstructing HighTvays. Sec Nuisances. Occupant. See Adverse Possession; Landlord and Tenant; Public Lands. OflSces and Officers. See Assessors; Board of Com- missioners for Erection of Penitentiary; Centennial Commission; Compensation; Constables; Corporations; Deputy; Elections; Executions, and Proceedings Sup- plemental; Jailer; Jurisdiction; Mandamus; Municipal Corporations; Quo Warranto; Schools; Sheriffs; Taxa- tion. Legislature can change term, after oflBce is filled, from two years to one: Territory v. Pyle, 1 Or. 149. One who claims a right by virtue of being a public oflScer must show that he is such dejure: Id. Contrary to public policy for officer to use his appointing power to place himself in office: State v. Hoyt, 2 Or. 246. Offices of city marshal and city councilman are incon- sistent, and cannot be held by same person: Id. Where an officer is known and recognized as having au- thority, court presumes he acts within his jurisdiction: Dennison v. Story, 1 Or. 272; Roy v. Plorsley, 6 Or. 270. Legislature may control unearned emoluments, except where prohibited expressly: Bird v. Wasco Co., 3 Or. 282. Appointee to fill vacancy of county judgeship, holds until next general election only: State v. Johns, 3 Or. 533. The term attaches to the person elected to fill the same 5 Id. Term of person elected county judge continues four years, unless terminated by death or resignation: Id. 436 Offices and Officers. OjG&ces and Officers (continued). The right to try a contest for a municipal office does not pertain to a municipality by implication from its right to elect its officers, nor from its general power to pass ordinances to carry into effect the provisions of the charter: Robertson v. Groves and Corvallis, 4 Or. 210. The presumption is, that officer was regularly appointed, and that his duty has been regularly performed: Dolph V. Barney, 5 Or. 192. Officers clothed with statutory power to do an act for benefit of the public, to perform the act becomes a duty, though statute is permissive in its terms: Springfield Milling Co. v. Lane Co., 5 Or. 265; Rankin v. Buck- man, 9 Or. 253; Hutchinson v. Olympia, 2 W. T. 314. Where an officer's bond is lost and copy cannot be had, a person damaged by official delinquency of an oflicer may have complete relief in equity: Howe v. Taylor, G Or. 284; S. C, 9 Or. 288. Right of a judge to sit cannot be objected to in criminal case on appeal, unless taken in the trial court: State v. Whitney, 7 Or. 386. The right to judicial office cannot be questioned collater- ally in the trial of a criminal case before the court: Id. Circuit Court will entertain proceedings under section 354 of the Code (sec. 357, Hill's A. L.), in the nature of quo warranto, notwithstanding a municipal board has been given the right to judge of the election of its mem- bers: State v. McKinnon, 8 Or. 493. But where the charter confers exclusive power in this re- spect on the municipal tribunal, its decision will not be reviewed: Simon v. Portland Com. Council, 9 Or. 437. Offices of circuit and supreme judges under act of 1878, providing for their election in distinct classes, were created by the act, and ipso facto became vacant: Cline and Newsome v. Greenwood and Smith, 10 Or. 230. An existing vacant offi,ce may be filled by the governor during the interim: Id. Legislature has absolute control of the matter of conapcn- sation of public officers: Portland v. Besser, 10 Or. 242. Executive officer charged with exercise of judicial func- tions is responsible only for proper attention and good faith: State v. Chadwick, 10 Or. 465. Offices axd Officers. 437 Offices and Officers (continued). Governor having rc^^igned, secretary of state succeeding to the duties of the oflice by the constitution, and con- tinuing to discharge the duties as secretary of state, is entitled to salary as governor: Chadwick v. Earhart, 11 Or. 389. Ceasing to be secretary of state, he is entitled to the oflQce and emoluments as governor, until the successor is duly elected: Id. Term of circuit judge is six years, but person elected dur- ing an unexpired term holds, not for six years, but for remainder of term: State v. Ware, 13 Or. 380. Policeman ousted by mayor and common council, with- out suflicient cause, and another appointed in his place, maj' n)aintain quo xcarranto against the intruder: Selby v. Portland, 14 Or. 243. Quserc, whether writ of review would not lie to obtain re- versal of the action: Id. But until there is an adjudication in a direct proceeding, adjudging him entitled to the office, he cannot sue the city for the salary: Id. A judicial district having been abolished by order of the judges, pursuant to statute, the clerk of the District Court in said district, from the date of the order, lost his legal existence, and all his subsequent acts as clerk were nullities: Boyer v. Fowler, 1 W. T. 101. Register of United States local land-office is a public officer, and his record may be proved by certified copies: Ward v. Moorey, 1 W. T. 104. The acts of the person holding said office cannot be im- peached collaterally: Id. Act of Congress, 1809, regulating elections in Washington Territory, had the effect of changing the time for elec- ti«n of county and other officers: Davidson v. Carson, 1 W. T. 307. Legislative assembly and Congress possess the power of lengthening or shortening tiie terms of officers elected solely under the laws of the territory: Id. Terms of officers elected at general election of 18G9 are n£)t changed by said act of Congress, changing time for election to June, 1870: Id. The authority of a notary de facto, to take the acknowl- 43S Offices and Officers. OfiB.ces and Officers (continued). edgment of a deed, cannot be questioned collaterally: Bullene v. Garrison, 1 W. T. 587. Retired army officer of United States army belongs to the army within section 1860, Revised Statutes of the United States, and is disqualified from holding office in Wash- ington Territory: Hill v. Territory, 2 W. T. 147. Information in the name of the territory is the proper method of ousting one unlawfully holding office under the laws of the territory: Id. Election of a person to office, so disqualified at the time of his election, is not rendered valid by a repeal of the statute disqualifying him: Id. Section 1222 of the United States Revised Statutes, prohib- iting all officers on the active list from holding civil office, does not repeal that part of section 18G0 which forbids officers on the retired list from holding office in the territories: Id. Officers on the retired list are, by section 1094, Revised Statutes, expressly declared a constituent part of the army, and so has the United States Supreme Court de- cided: Id. Official Bonds. See Bonds and Undertakings. Oleomargarine. Instruction as to intent to ofier for sale, in exposing in common salesroom, unmarked, held not erroneous: State v. Dunbar, 13 Or. 591. So exposing the same is an act from which the intent to sell may be inferred: Id. Onus Probandi. See Evidence. Opinion Evidence. See Evidence. Ordinances. See Municipal Corporations. Pardon. Does not restore one convicted of felony to civil rights and right to vote: Darragh v. Bird, 3 Or. 229; contra, Wood v. Fitzgerald, 3 Or. 568. Article 2, section 3, state constitution, no restriction on effect of pardon: Wood v. Fitzgerald, 3 Or. 568. Parent and Child. See Infants. iS'o liability to pay wages to son under twenty-one years voluntarily returning to father's farm, after having been given privilege to go and work for himself: Albee v. Albee, 3 Or. 321. Parties. 439 Parent and Child (continued). Son over twenty-one, working on father's farm, when en- titled to recover for labor: Id. Parent not liable even for necessaries furnished minor without autbority express or implied: Carney v. Bar- rett, 4 Or. 171. No agreement implied in law that father will pay daughter living in family for services as housekeeper: Barrett v. Barrett, 5 Or. 411. Putative father of a bastard is not liable on his naked promise for its support: Nine v. Starr, 8 Or. 49. Mother of such child is its guardian, and is bound to maintain it: Id. Where a father takes deed to land in the name of his infant son, and goes into possession and improves, his possession is the son's possession: Lawrence v. Law- rence, 14 Or. 77. Influence of parent is presumed so long as the dominion of the parent lasts: Baldock v. Johnson, 14 Or. 542. This, though the daughter, seventeen years of age, is re- cently married, but still resides with her parent: Id. Parol Evidence. See Evidence. Parties. See Appeal and Error; Contracts; Deeds; Estop- pel. Demurrer lies for misjoinder of parties defendant: White v. Delschneider, 1 Or. 254; contra, Powell v. Dayton etc. R. R. Co., 13 Or. 446. If the court can make a decree not prejudicial to the rights of parties, the objection to the misjoinder of par- ties will not prevail: Id. Legal title to mortgaged property being in wife, she is necessary party to foreclosure: Fahie v. Pressy, 2 Or. 23. Judgment debtor, or his representatives after his death, are proper parties to object to confirmation of sheriff's sale: Miller v. Bank of British Columbia, 2 Or. 291. After mandate sent below. Supreme Court will not hear motion to substitute parties: Boon v. McClane, 2 Or. 331. Corporation must bring in all owners in action to condemn land: Willamette Falls C. & L. Co. v. Kelly, 3 Or. 99. Junior and subsequent lien claimants proper parties in 440 Parties. Parties (continued). suit to foreclose mortgage: Besser v. Hawthorne, 3 Or. 129; S. C, 3 Or. 512. One not made party not bound, and may afterward fore- close: Besser v. Hawthorne, 3 Or. 512. One of makers of joint note has a right to have the others made parties: Kamm v. Harker, 3 Or. 208. In a complaint against a married woman, she may be treated as a feme sole; she must plead her coverture: Kennard v. Sax, 3 Or. 263. New parties being suggested by the answer, amendment of complaint allowed to make them defendants: Mc- Cown V. Hannah, 3 Or. 302. Trustees of unincorporated religious society may sue for the benefit of the society: Trustees v. Adams, 4 Or. 76. Administrator has no power to sue to set aside decedent's deed without order of court: King and Lownsdale v. Boyd, 4 Or. 326. Complaint by trustee of an express trust should show for whose benefit he sues: Hollada}'^ v. Davis, 5 Or. 40. Judgment creditors may unite in suit to set aside fraudu- lent conveyance: Elfelt v. Hinch, 5 Or. 255. Petitioners and remonstrators are the only parties to pro- ceedings in County Court to lay out road: C. & G. Road Co. v. Douglas County, 5 Or. 280. Third party holding legal title of realty fraudulently con- veyed is a proper party defendant in divorce suit: Wet- more V. Wetmore, 5 Or. 4C9. Minors are not adversary parties to guardian in proceed- ings before County Court for leave to mortgage minor's property: Trutch v. Bunnell, 5 Or. 304; but see S. C, 11 Or. 58. Plaintiff having died, objection that executrix is not duly qualified to sue must be taken by plea in abatement, or is waived: JMurray v. IMurray, 6 Or. 26. Such executrix, being also legatee, and the successor in interest in the subject-matter of the suit, is qualified to sue under section 37 of the Code (sec. 38, Hill's A. L.): Id. Application for continuance of cause in the name of the personal representatives of a deceased party, if made within a year, is in time, though the order be not made Parties. 441 Parties (continued). until lifter the expiration of the vear: Dick v. Kendall 6 Or. 1G6. United States is not subject to process or jurisdiction of state court: Goldsmith v. The Revenue Cutter, 6 Or 250. Having failed to acquire jurisdiction of defendant, and having rendered void judgment, justice may issue alias summons and proceed: Knapp v. King, 6 Or. 243. Finding of fact by the court is conclusive upon parties to the suit in favor of persons not parties: Knott v. Knott 6 Or. 334. Stipulation for a decree affecting the property rights of all tlu' parties to a suit, but not entered into by all, is inop- erative, and cannot be enforced: Adams v. Wilson, 6 Or 391. Heirs are necessary parties defendant in foreclosure suit against executors: Rcnshaw v. Taylor, 7 Or. 315. If the action or proceeding can be determined without them, other parties cannot be brought in: Tichenor v. Coggins, 8 Or. 270. Persons holding possession, and claiming adversely to plaintiff's rights, may be made defendants in suit by divorced wife against husband for one third of his prop- erty: Weiss V. Bethel, 8 Or. 522. Objection to plaintiffs suing jointly cannot be taken for first time in Supreme Court: Stingle v. Nevel, 9 Or. 62. Board of directors of the state university are a corpora- tion, and not mere agents of the state, and may be sued without joining the state as a party: Dunn v. State Uni- versity, 9 Or. 357. The inimunity of the state from being sued applies only to its being made a party to the record; its agents hold- ing title and possession of property may be sued con- cerning the same: Id. Actions by or against a county must be brought in the name of tlie county: Weiss v. Jackson Co., 9 Or. 470- Vv'ood V. Riddle, 14 Or. 254. ' Parties whose interests and damages are distinct, damaged by injunction, may sue at law upon the bond jointly or severally, though the injunction is joint: Ruble v Coy- ote G. & S. M. Co., 10 Or. 39. 442 Parties. Parties (continued). Tax-payer is entitled to sue in equity to prevent fraudu- lent or illegal disposition of county funds, and county need not be a party: Carman v. Woodruff, 10 Or. 133; White V. Com. Multnomah County, 13 Or. 317. Private relator in quo warranto is not a party, and cannot control the proceedings: State v. Douglas County Road Co., 10 Or. 198. Private parties cannot use the name of the state to try out a question of title between themselves by quo warranto: Wilson and Wakeman v. Shively, 10 Or. 267. State is proper party to bring suit against custodians of school funds for an accounting: State v. Chadwick and Brown, 10 Or. 423. An appeal will not be dismissed for want of necessary par- ties, where a decision can be made respecting the parties to the appeal, and not affecting the rights of other per- sons not made parties: Poppleton v. Nelson, 10 Or. 437. Person for whose benefit a contract is made may sue upon it: Hughes v. Or. R'y & Nav. Co., 11 Or. 437. In a suit by a creditor to hold a stockholder individually liable, it is not necessary to make all creditors and stockholders parties: Brundage v. Mon. G. & S. M. Co., 12 Or. 322. In such suit, if a defendant stockholder wants other stock- holders made parties, he must bring them in at his own expense by ansAver or otherwise: Id. But in a suit to wind up the affairs of an insolvent cor- poration, all creditors and stockholders are necessary parties: Id. Defendants in a suit for joint tort are not liable on proof of several conversions: Dahms v. Sears, 13 Or. 47; Cooper V. Blair, 14 Or. 255. Sheriff and several attaching creditors under separate at- tachments are not properly joined as defendants for con- version: Id. In an action on a joint obligation, judgment may be had against one defendant proved liable, where the others are proved not liable: Ah Lep v. Gong Choy, 13 Or. 205; Fisk v. Ilenarie, 14 Or. 29. Demurrer for defect of parties lies when on the face of the complaint the presence of other parties appears neces- Bary: Cohen v. Ottenheimer, 13 Or. 220. Parties. 443 Parties (continued). Demurrer to the complaint as not stating facts sufficient is the remedy when too many parties are brought in: Id. In mandamxis, where the matter is of public interest as to a violation of a public duty, relator need show no other interest than as a citizen and a voter: State v. Ware, 13 Or. 380. Misjoinder of parties plaintiff is not ground for demurrer in Oregon: Powell v. Dayton etc. R. R. Co., 13 Or. 446. Co-tenants cannot join as plaintiffs in ejectment, but the defect is waived by answering over: Minter v. Durham, 13 Or. 470. Co-tenants jointly contracting with a broker are properly joined as defendants in an action for breach of the con- tract: risk v. Henarie, 14 Or. 29. The contract, and not the fact of their co-tenancy, deter- mines their joint or several liability: Id. Person purchasing property for the use of, and at the in- stance of, another, is a trustee of an express trust, and can sue regarding it in his own name: Hexter v. Schneider, 14 Or. 185. County is necessary party in proceedings for review of judicial action of the County Court in county business: Wood V. Riddle, 14 Or. 254. To enable plaintiff to join several tort-feasors as defend- ants in one action, some community in the wrong-doing must exist between them : Cooper v. Blair, 14 Or. 255. Different persons, taking wheat from a warehouse at differ- ent times without concert of action, cannot be joined as defendants in action for the conversion : Id. Where, on trial, plaintiff fails to prove his case as to some of the defendants, it seems he can amend his complaint by^Dmitting them: Id. On a contract of guaranty, principal and guarantor are severally liable, and should not be joined as defendants: Tyler v. T. of T. A. & P. U., 14 Or. 485. Where several defendants have been improperly joined in a suit on contract, it is the duty of the plaintiff to elect wliich he will proceed against: Id. Objection of non-joinder should be taken at the proper fcitage of the proceedings: Gove v. Moses, 1 W. T. 7. 444 Parties. Parties (continued). No binding order can be made on persons not parties to the suit: Madison v. Madison, 1 W. T. 60. A brought suit against B for damage to his crops by cattle of B; it was error, upon the trial, for the court to sum- marily dismiss the suit on account of the non-joinder of C, who had an interest in the crops: Washburn v. Case, 1 W. T. 253. The interest of C in such case might be consistent with the right of A to recover for the trespass, and at most would amount to a partial failure of proof: Ed. Surviving partner, and not the executor, is proper party defendant, in the absence of statute, in suit for a part- nership debt: Barlow and Shepherd v. Coggan, 1 \V. T. 257. Indian can be sued as defendant upon a contract which he is not prohibited by statute from making: Gho v. Julles, 1 W. T. 325. Where proceedings are instituted to compel the members of the board of county commissioners to perform duties devolving upon them by law, not as a board but as in- dividuals, the county is in no sense a party: Kitsap Co. V. Carson, 1 W. T. 419. Married woman can maintain libel in rem, for injury to her person by negligence on shipboard, in admiralty: Phelps V. Panama, 1 W. T. 518. Objection that her husband joins her in such suit can- not first be taken advantage of in the Supreme Court: Id. The name of a party unnecessarily inserted in a libel should, if motion be made therefor at proper stage of the case, be stricken out; otherwise, it will not be noticed: Id. When new parties should be brought in on proceedings supplemental to execution : ^lurne v. Schwabacher Bros. & Co., 2 W. T. 130; S. C, 2 W. T. 191. In action by an administrator against a son of the de- ceased for conversion of funds of the estate, a brother of defendant is not a party in interest as to the record, and may testify as a witness: McCoy v. Ayers, 2 W. T. 307. PARTNERSniP. 445 Partition. County Court has no authority to partition real estate of decedent: Ilanner v. Silver, 2 Or. 336; Hatcher v. Briggs, 6 Or. 31; Burnside v. Savier, G Or. 154. Particular i)roperty must be designated, and the interest of the persons,in a complaint in partition: Id. Order directing partition or sale, without further proceed- ings, under statute of 1855, is not a final order, and not notice to parties and privies: By bee v. Summers, 4 Or. 854. Authority of County Court to partition was abrogated by act of 1862: Hatcher v. Briggs, 6 Or. 31. Administrator has no power to partition real property of partnership: Burnside v. Savier, 6 Or. 154. Complaint must allege plaintiff is in possession: Farris v. Hayes, 9 Or. 81. Rule that possession of one co-tenant is the possession of all is overcome by showing that such co-tenant claims to own the whole under color of title: Id. Partition does not affect rights of a mortgagee in the un- divided half owned by his mortgagor, except to sever the interest without disturbing the lien: Board S. L. Com. V. Wiley and Davis, 10 Or. 86. Decree which ascertains and determines rights of the par- ties, and leaves nothing to be done but to appoint ref- eree, etc., to carry it into effect, is final decree, and ap- peal lies therefrom: Walker v. Goldsmith, 14 Or. 125. Questions of fact can be tried only upon issue joined, as in other suits: Id. Partition by Probate Court as a judicial proceeding is void, but the parties consenting, the adults by appear- ence in person, and the minors by guardians, they and their successors in interest are bound: Brazee v. Scho- field, 2 W. T. 209. Parcri-partition, consummated by possession in severalty, confirmed by long acquiescence and many changes of title, will not be disturbed in equity: Id. Partnership. Firm name signed to bond binds partner signing only, unless the firm assent: Charman and Warner v. IMc- L'ane, 1 Or. 339. Confession of judgment by one partner binds him only, unless in action pending: Richardson v. Fuller, 2 Or. 179. 446 Partnership. Partnership (continued). Effect of signing firm name to note and mortgage by one partner with knowledge of the other: Chavener v. Wood, 2 Or. 182. Partner sued on joint note may plead in abatement non- joinder and misjoinder: Kamm v. Harker, 3 Or. 208. Partnership cannot sue or be sued; the individual mem- bers are the parties: Id. Receiver not appointed, unless there is danger of ultimate loss of the property: Wellman and Peck v. Harker, 3 Or. 253. On a contract to purchase real property by partners, when survivor is entitled to special performance: Knott v. Stephens, 3 Or. 269. Accounting, when partner entitled to, and what complaint -must show: Holladay v. Elliott, 3 Or. 340. Effect of docketing judgment in partnership name: Dear- born V. Patton, 3 Or. 420. Partnership partly relating to land is valid though not in writing: Knott v. Knott, 6 Or. 142. Such partnership may be proved by parol: Id. Partner taking ferry and franchise in his own name, pur- chased with partnership property for the firm, held a trustee for the firm: Id. Administrator has no power to partition real estate of part- nership: Burnside v. Savier, 6 Or. 154. Dissolution may be had in equity when business becomes impracticable without great loss: Holladay v. Elliott, 8 Or. 84. Referee for an accounting should ascertain what the prof- its were, not what they should have been: Boire v. Mc- Ginn, 8 Or. 466. When the books fail to show the profits, experts cannot testify what they should have been: Id. Profits may be calculated from amount of goods sold at the rate of profit proved: Id. Entries in books where both partners have access to them are prima facie correct as between them: Id. Dissolution and division without fraud vests the property in each partner Individ uallv: McKinney v. Baker, 9 Or. 74. Goods formerly belonging to firm, but after such division Partnership. 44 7 Partnership (continued). held by one partner, are not partnership goods that will not pass to his assignee for all his creditors: Id. Dissolution agreement held not executory, thc.ugh one partner assumed debts to be paid in the future: Id. Dissolution partly consummated, equity will take juris- diction for an accounting, and to ascertain amounts due on final settlement: Gleason v. V^an Aernani, 9 Or. 343. Final settlement as a defense in such suit must be pleaded: Id. Partner is not entitled to compensation for his services, unless by contract expressed or implied: Mann v. Flan- agan, 9 Or. 425. Liability of persons on a note signed with a partnership name by one of them: Kearney v. Snodgrass and Minor, 10 Or. 181; S. C, 12 Or. 311. Definition of partnership: Cogswell v. Wilson, 11 Or. 371; Bloomfield v. Buchanan, 13 Or. 108. Does not depend on the fact that each partner has in all things kept the partnership agreement, and may exist notwithstanding: Id. Two partnerships, composed of same individuals in part, cannot sue each other at law: Beacannon v. Liebe, 11 Or. 443. But the assignee of the claim of one such firm against the other, where no accounting is necessary to fix the amount, may sue at law thereon: Id. Principle denying corporations' power to become partners: Hackett v. Multnomah County, 12 Or. 124. Partnership articles providing for a division of the pro- ceeds of the partnership property in case of a sale thereof before the expiration of the partnership, one of the partners cannot be deprived of his share without his consent: Moore v. Knott, 12 Or. 260. Incoming partners are liable on a contract previously made but assumed by the new partnership, though the other party did not know they were partners: Kearney v. Snodgrass, 12 Or. 311. Not necessary that there be an express stipulation to ehare profit and loss to constitute partnership: Bloom- field V. Buchanan, 13 Or. 108. Partnership not liable for money borrowed by one of the 448 Partnership. Partnership (continued). partners on his own account representing that it is to be used in the partnership business: Ah Lep v. Gong Choy, 13 Or. 205. Lender must have understood that he was dealing with the firm through the partner as agent of the firm: Id. In an action in wliich it is in issue whether certain ac- counts had been transferred on the partnership books to tlie credit of one of the partners, the books are evi- dence of tlie fact: Moore v. Knott, 14 Or. 35. In suit for accounting, partners are usually severally lia- ble, but not jointly: Bloomfield v. Buchanan, 14 Or. 181. But where there is a concerted action among some of the partners to exclude one from the profits, they are both jointly and severally liable: Id. In the absence of statute, surviving partner has com- plete control of the partnership effects; suits may be brought by or against him for partnership demands and liabilities: Barlow and Shepherd v. Coggan, 1 W. T. 2.57. Remedy cannot be had against executor of deceased part- ner, unless firm property is insufficient to pay the claim: Id. When one of the makers of a note dies before the maturity of the note, presentment and demand should be made on the surviving maker, and not the executor of de- ceased partner: Id. Such claim need not be presented to administrator before suit, for the reason that the surviving partner has the same knowledge of the debt that the deceased had: Id. Surviving partner on having to pay the whole of joint debt may reimburse himself out of the deceased part- ner's share of the firm property: Id. One partner cannot sue his copartner in a court of law for a recovery upon an unsettled partnership indebted- ness: Stevens v. Baker, 1 W. T. 315. Part Performance. See Contracts; Specific Performance; Statute of Frauds. Party-walls. See Boundaries. Patents. See Public Lands. Paupers. Under the statute, a complaint to charge the county for the support of a pauper, must show that the Payment. 449 Paupers (continued). county board have recognized the person as a pauper: Collins V. King County, 1 W. T. 416. Such complaint should show a compliance, by the one suing, with the expressed statute: Id. No action on implied contract to reimburse one for sup- porting a pauper will lie until there has been affirma- tive action by the board, which must be pleaded: Id. Such complaint must show the claim was presented and disallowed by the board: Id.; King County v. ColHns and Condon, 1 W. T. 4G9. Quaere, whether the complaint should show that the pauper had no relatives bound to support him: Id. Entry in records of commissioners of King County, show- ing that Snohomish County is called on to remove cer- tain paupers of the latter county kept in King County, is not evidence to hold King County liable for such, keeping: King County v. Collins and Condon, 1 W. T. 4G9. Such record only shows King County not liable: Id. No recovery can be had against a county for the keeping- of paupers, until it is proved that the county board have adjudicated such persons paupers, and authorized plaintiff to keep them as such: Id. Payment. See Contracts; Mortgages; Statute of Limita- tions; Tender. State has power to require taxes paid in coin, and such. is the law in Oregon: Whiteaker v. Haley, 2 Or. 128. Officer's fees may be paid in currency, and clerk has no. right to demand coin: Coffin v. Coulson, 2 Or. 205. Payment by one joint debtor of part of the debt revives the debt as to all the debtors: Partlow v. Singer, 2 Or. 307. Linoitation begins to run from date of payment: Id. Note in possession of maker, presumed paid; presumption disputable: Hedges v. Strong, 3 Or. 18. Payment of consideration in deed may be disputed by parol: Brown v. Cahalin, 3 Or. 45. Mere readiness to pay, without tender, not sufficient where tender is essential: Smith v. Foster, 5 Or. 44. Deferred payments become due at once on breach of con- tract by party liable: Monroe v. N. P. Coal Mining Co;^ 5 Or. 509. Or. Dig.— 29 450 Payment. Payment (continued). When no time of pa3rment is stated in the note, it is pay- able at once: Dodd v. Denny, 6 Or. 156. The presumption that a person not in possession of note has no authority to receive payments may be rebutted: Swegle V. Wells, 7 Or. 222. Application of payments; if the parties fail to make, when and how done by the court: Trullinger v. Kofoed, 7 Or. 228; Calhoun y. Galliland, 2 W. T. 174. Payment need not be pleaded as a counterclaim, and may be proved under a general allegation of payment: Hendrix v. Gore, 8 Or. 40G. Where the court applied payments admitted, first on un- secured claim and then on secured claim, admitted by answer to be a lien; held, proper application of pay- ments: Jackson v. New Idrian C. M. Co., 10 Or. 157. MoTtgagee foreclosing lien to secure several debts due him may, if proceeds are insufficient to pay all, pay any one of the debts, and a surety on others cannot compel pro rata application: Wilson v. Allen and Lewis, 11 Or. 154. Action for money had and received lies by debtor against creditor to recover money paid to the latter to be ap- plied on particular obligation, and not so applied: Stewart v. Phy, 11 Or. 335. A promise to repay need not be alleged in such case: Id. Demand is not necessary before action for- reasonable value of services rendered: Gibbs v. Davis, 11 Or. 288. Court cannot, on distribution of assets of an estate, order a share of a devisee to be paid to an assignee thereof: Harrington v. La Rocque, 13 Or. 344. But such assignee may notify the executor of his claim for the purpose of requiring payment to him: Id. Money collected from the principal debtor upon execution is pro tanto a discharge of a contract of guaranty of the debt: Marx v. Swartz, 14 Or. 177. Evidence reviewed, and held to establish a defense of part payment: Hughes v. Walker, 14 Or. 481. Voluntary payment of the debt of another gives rise to no cause of action in favor of the person so paying: Williams & Co. v. Miller & Co., 1 W. T. 88. Penalties. See Damages; Fines and Forfeitures. Physicians and Surgeons. 451 Penitentiary. See Board of Commissioners for Erection of Penitentiary. Performance of Contracts. See Contracts; Specific Per- formance. Perjury. Suflicicnt in indictment to allege the oath was taken in trial before Circuit Court, without designating the offi- cer wlio administered it: State v. Spencer, 6 Or. 152. Must set forth the matters in respect of wliich the crime was committed: State v. Witham, 6 Or. 3G6. Slight variance in the proof of the statement sworn to from that alleged in the indictment is material: State V. Ah Sam, 7 Or. 477. When an indictment charged that the defendant swore that he saw A at the house of B, on a certain day- named, and it is shown that A was not there on that day, and testimony to the effect that the defendant did not so swear, but swore that A was at that house on another day, being produced, it is error to instruct that the variance was not material; Id. Perpetuation of Evidence. See Evidence. Personal Property. See Chattel Mortgages; Replevin; Sales; Taxation. Physicians and Surgeons. See Contracts. Responsible for ordinary skill; not liable for error of judgment: Heath v. Glisan, 3 Or. 64; Boydston v. Giltner, 3 Or. 118; Williams v. Poppleton, 3 Or. 139. Rcfracture of arm by surgeon ; question of negligence, and when liable for: Boydston v. Giltner, 3 Or. 118. Experts may testify to skill used in a certain operation, but not to the skill of defendant generally: Id.; Wil- liams V. Poppleton, 3 Or. 139. Reputation for skill not admissible as evidence: Williams v^Poppleton, 3 Or. 139. Consultations as part of res gestae admissible, but not otherwise: Id. Question which surgical system is best, or other questions of surgical science, not to be considered: Id. Sufficient if practitioner follow a known system: Id. The statute prescribing qualifications of a person prac- ticing medicine is in no sense an ex post facto law: Fox v. Territory, 2 W. T. 297. 452 Physicians and Surgeons. Physicians and Surgeons (continued). Nor does such act prescribing who may practice medicine violate the fourteenth amendment of the United States constitution, either in depriving any person of his rights, or in making an unjust discrimination against him: Id. Pilot Commissioners. See Pilots and Pilotage. Pilots and Pilotage. In suit between third persons, validity of warrant to act as pilot cannot be questioned: Edwards v. Steamship Panama, 1 Or. 418. Possession and exhibition of warrant, sufficient to author- ize master to employ: Id. Territory of Washington has power to pass pilotage laws: Id. Review of laws of United States in reference to pilotage: Id. As to certain steam vessels the act of Congress of 1852 supersedes all state laws: Id. Formal notice of charges need not be served on a pilot by the board of commissioners; it is sufficient if he be given an opportunity to explain and disprove: Snow v. Reed, 14 Or. 342. Board cannot delegate to another the duty of deciding upon such charges, but they may employ an attorney to advise them: Id. The word " states," in the act of Congress of 1837, regard- ing pilotage on navigable rivers between states, includes territories: Neil v. Wilson, 14 Or. 410. In Oregon, pilot who has brought a vessel into the Colum- bia River cannot enforce a claim for outward pilotage fees also, as provided by Oregon statute, if the vessel chooses to take a Washington Territory pilot out: Id. Pleadings. See Abatement; Accounts; Accounting; Actions and Suits; Administration; Administrators and Execu- tors; Admiralty; Answers and Defenses; Appeal and Error; Assumpsit; Bill of Particulars; Bills and Notes; Bonds and Undertakings; Cloud on Title; Codes; Com- plaints; Contracts; Criminal Law; Damages; Divorce; Ejectment; Equity; Estoppel; Evidence; Forcible En- try and Detainer; Fraud and Deceit; Fraudulent Con- veyance; Habeas Corpus; Injunctions; Interpleader; Pleadings. 453 Pleadings (continued). Jurisdiction; Justice of the Peace; Malicious Prosecu- tion; Mistake and Accident; Municipal Corporations; Negligence; Nuisance; Parties; Partition; Paupers; Practice; Quieting Title; Reformation; Seduction; Set- off and Counterclaims; Slander and Libel; Specific Performance; Usury. 1. Certainty and Definiteness. 2. Verification. 3. Construction. •4. Admissions. 5. Joinder of Causes. 6. Motion to Strike out. 7. Miscellaneous Motions 8. Demurrer. 9. Amendments. 10. Supplemental Pleadings. 1. Certainty and Definiteness. Complaint alleging mere conclusions of law will not sus- tain judgment in default; AVilliams v. Knighton 1 Or 234. Pleadings in County Court, under the act of 1859, were not required to be in any particular form: Cain v Harden, 1 Or. 360. The facts should be stated positively, and in a traversable form: Heatherly v. Iladley, 2 Or. 269. Account being insufficiently pleaded, defendant should not demand bill of items, but should move that same be made more definite and certain: Flanders v Ish 2 Or 320. Though complaint does not state cause of action, court may have jurisdiction: Norman v. Zieber, 3 Or. 197. Mere vagueness must be corrected by amendment, not visited by judgment: Foren v. Dealey, 4 Or. 92; Hough- ton and Palmer v. Beck, 9 Or. 325. Concise statement of facts, constituting action or defense, should be pleaded, and not the circumstances from which such fiicts can be inferred: Smith v. Foster, 5 Or. 44. Strict formality in pleading in Justice's Court not neces- BAry: Houghton and Palmer v. Bock, 9 Or. 325. Informal statement of fact is cured by verdict: Id.; David V. Waters, 11 Or. 448; Aiken v. Coolidge, 12 Or. 244; Andros v. Childers, 14 Or. 447. 454 Pleadings. Pleadings (continued). But verdict does not supply a fact not pleaded: Weiner v. Lee Shing, 12 Or. 276. In pleading city ordinance (prior to 1885), mere reference to it by number is insufficient; it must be set fortli in extenso so far as relied on: Pomeroy v. Lappeus, 9 Or. 363; Nodine v. Union, 13 Or. 587. Facts should not be stated in the alternative: Ladd and Bush V. Ramsby, 10 Or. 207. Uncertainty, after judgment and on appeal, no ground for reversal, where there is no fatal defect: Osborn v. Graves, 11 Or. 526; Baldoek v. Johnson, 14 Or. 542. Where facts sufficient are alleged, although encumbered with redundant matter, the complaint will be sustained, no motion to strike out having been made: Smith v. Butler, 11 Or. 46. In pleading the performance of a condition precedent under the Code, it is sufficient to allege generally that the party performed all the conditions on his part: Griffin v. Pitman, 8 Or. 342; Fisk v. Henarie, 13 Or. 156. After verdict the only question is, whether the facts stated are sufficient to sustain the verdict: Fisk v. Henarie, 13 Or. 156. A defective statement of facts in a pleading is waived by joining issue upon them: Davis v. Wait, 12 Or. 425. Description and valuation of mare and her colt together, in complaint in replevin, is sufficient: Prescott v. Heil- ner, 13 Or. 200. Essential facts must be alleged: Tolmie v. Dean, 1 W. T. 46. Answer must state the facts with the certainty and defi- niteness of a complaint: Meeker v. Wren, 1 W. T. 73; Roeder, Peabody, & Co. v. Brown, 1 W. T. 112. Pleadings under the Code are not subject to the rules of the old system of pleading: Newberg and Abrams v. Farmer, 1 W. T. 182; P. S. I. Co. v. Worthington, 2 W. T. 472. The logic of pleadings stated, and the rigid rules of the common law contrasted with the rules of the Code: Renton v. St. Louis, 1 W. T. 215. Common-law forms, while not demurrable, are too indefi- nite and uncertain for pleadings under the Code: Id. Pleadings. 455 Pleadings (continued). PlaintiiF must state his cause of action with sufTicient particularity to inform the defendant of its real char- acter: P. S. I. Co. V. Worthington, 2 W. T. 472. The defendant must deny the plaintifT's allegations, or he must state new matters in avoidance, by way of coun- terclaim: Id. If the pleadings are not full and definite, the remedy is by motion to cure the defect: Id. 2. Verification. By person having knowledge of the facts must show that he has knowledge of all the facts alleged: Willamette Falls etc. Co. v. Riley, 1 Or. 183. Where affidavit omitted venue, but the officer making it resided and had authority within the district of the court, it was held sufficient: Dennison v. Story, 1 Or. 272. Verification by agent need not state the party is out of the county, if all the material allegations are known to the agent: Steamer Senorita v. Simonds, 1 Or. 274. Allowance of amendment to is discretionary: Blanchard V. Bennett, 1 Or. 328. Jurisdiction and authority of person administering oath must appear in his certificate: Id. Want of proper verification or subscription is an irregu- larity waived in pleading over: State v. Chadwick and Brown, 10 Or. 423. And the objection to the form of verification of an item- ized account, furnished on demand, must bo promptly taken, or it is waived: Bobbins v. Benson, 11 Or. 514. 3. Construction. Failure to deny fact, and conclusion therefrom, admits fact, but not conclusion: Boydston v. Gilmer, 3 Or. Its. Opinion of experts admissible to explain technical words in, but not the construction of, the pleading: Williams v. Poppleton, 3 Or. 139. It does not raise an issue to deny that plaintiff is a "duly organized corporation": Oregon Central R. R. Co. V. Scoggin, 3 Or. IGl. Navigability of stream alleged between certain points, not extended by construction beyond those points: Fel- ger v. Robinson, 3 Or. 455. 456 Pleadings. Pleadings (continued). Where answer attempts to allege manner of service of summons, evidence cannot aid the allegation: Heath- erly v. Hadley and Owen, 4 Or. 1. In order to determine the issues to be tried in an action, the court can look to the pleadings only, which cannot be enlarged or explained by affidavits: Cauthorn v. King, 8 Or. 138. Allegation that an order was made appointing an admin- istrator on a certain day cannot be held to mean that letters appointing him issued at that time: Wells v. Applegate, 10 Or. 519. Such construction should be favored as will lead parties to make early objections to defective pleadings: Renton V. St. Louis, 1 W\ T. 215. 4. Admissions. Party who would otherwise be estopped may take advan- tage of fact admitted by adversary's pleadings: Lee v. Summers, 2 Or. 260. Failure to deny fact and conclusion therefrom admits the fact, but not the conclusion: Boydston v. Giltner, 3 Or. 118. Character of wound, being alleged in answer, where the reply does not deny the same, the admission is conclu- sive: Williams v. Poppleton, 3 Or. 139. Where the pleadings admit an agreed price for labor, evi- dence of reasonable value not admissible: Davis v. Mason, 3 Or. 154. Guardian ad litem may bind infant by admi.";sions in pleadings: English v. Savage, 5 Or. 518. If plaintiff relies on the admissions in the answer to re- cover, he should not deny such admissions in his reply: Spores V. Boggs, 6 Or. 122. Where the answer admits an allegation of the complaint, plaintiff is precluded from proving a state of facts other than alleged: De Lashmutt v. Everson, 7 Or. 212. Answer admitting an essential fact omitted from com- plaint aids the latter, and it is good after verdict: Tur- ner V. Corbett, 9 Or. 79. Decree founded on claim to the extent admitted in the answer is good: Jackson v. New Idrian C. M. Co., 10 Or. 157. Pleadings. 457 Pleadings (continued). An answer atlujitting the facts alleged in the complaint, whicli entitle the plaintiff to damages, but denying the damages, at least nominal damages follow: Iladlan V. Ott, 2 W. T. 1G5. 5. Joinder of Causes. Claims for wages earned under a contract before discharge from the employment, and after discharge, may be united: Bowman v. Ilolladay, 3 Or. 182. "Multifariousness," assigned as an objection in a de- murrer, though a term not known to the Code, may be construed as misjoinder of causes of action: Cohen v. Ottenheimer, 13 Or. 220. Demurrer for misjoinder being sustained, an entirely new pleading must be filed, containing the cause which the pleader elects to pursue: Id. Where plaintiffs jointly sue, relying on allegations of mis- representation, which do not appear to have been made to them as a class, demurrer for misjoinder lies: Powell V. Dayton etc. R. R. Co., 13 Or. 44G. Court unable to agree whether a count for destruction of a building may be joined with counts upon contract: Williams v. Miller & Co., 1 W. T. 88. 6. Motion to Strike out. Matter in abatement stricken out, when defendant refused to elect between abatement and bar pleaded in same answer: Or. Central R. R. Co. v. Wait, 3 Or. 91. If part of matter moved to be stricken out is properly pleaded, motion denied: White v. Allen, 3 Or. 103; Hol- brook V. Page, 3 Or. 374. When matter in abatement and bar is pleaded in same an- swer, abatement stricken out on motion: Or. Central R. R. Co. V. Scoggin, 3 Or. 161. Redundant matter in an action for recovery of real prop- erty: Pease v. Hannah, 3 Or. 301. Demurrer, and not motion to strike out, is the remedy against deficient pleading filed in good faith: Cline v. Cline, 3 Or. 355. Test of materiality: Will failure to prove the allegation decide tlie case, in whole or in part? Id. Averments not presenting issuable facts will be stricken out on motion: Ilolbrook v. Page, 3 Or. 374. 458 Pleadings. Pleadings (continued). Express admissions in answer are unnecessary, and may be stricken out as redundant: Id. Defense sufficient as pleaded may be stricken out if false, but cannot be demurred out: Torrence v. Strong, 4 Or. 39. Answer must be false, and pleaded in bad faith, to justify striking out as sham: Foren v. Dealey, 4 Or. 92. In absence of motion to strike out, mere surplusage will not render a complaint fatally defective: Smith v. But- ler, 11 Or. 46. Demurrer cannot be stricken out on motion: Cohen v. Ot- tenheimer, 13 Or. 220. Error in striking out an answer is waived by filing a new answer: Hexter v. Schneider, 14 Or. 184. Motion to strike out a motion will not be allowed: Mann V. Young, 1 W. T. 454. Defendant, who has pleaded irrelevant matter in his an- swer cannot complain of refusal of court to strike out like matter from the reply: P. S. I. Co. v. Worthington, 2 W. T. 472. 7. Miscellaneous Motions. Motion to make definite, and not demand for bill of items, is proper remedy, when insufficient statement of account is set out in complaint: Flanders v. Ish, 2 Or. 320. Where abatement and bar were pleaded in same answer, motion to compel election sustained: Or. Central R. R. Co. V. Wait, 3 Or. 91. Counter-affidavits may be filed on motion for leav'e to de- fend after judgment, under section 57 of Code: Smith v. Smith, 3 Or. 363. Motion for judgment on the pleadings allowed, where answer denies legal conclusions only: Simpson v. Prather, 5 Or. 86. Such motion, under the Oregon Code, should not be al- lowed, except where new matter in answer is not de- nied by reply: Bowles v. Doblo, 11 Or. 474. In absence of demurrer, defective pleading not constitut- ing a defense should be taken advantage of, after ver- dict, by motion non obstante, and not by objection to proof at trial: Specht v. Allen, 12 Or. 117. Pleadings. 459 Pleadings (continued). If complaint be faulty in other respects than those demur- rable under the Code, the fault may be reached by motion: Renton v. St. Louis, 1 W. T. 215. If the pleadings are not full and accurate, the remedy is by motion to cure the defect: P. S. I. Co. v. Worthing- ton, 2 W. T. 472. 8. Amendments. Allowance of amendment to verification is discretionary: Blanchard v. Bennett, 1 Or. 328. Amendment on appeal from County Court under the statute does not include the right of filing a new plead- ing for first time after default: Cain v. Harden, 1 Or. 3G0. Allowance of amendment after calling case for trial is discretionary: Brauns v. Stearns, 1 Or. 3G7. Abatement and bar pleaded in same answer, leave to amend matter in abatement denied: Or. Central R. R. Co. v. Scoggin, 3 Or. 161. Though complaint does not allege sufficient facts, court may have jurisdiction and allow amendment: Norman V. Zicber, 3 Or. 197. Amendment of complaint allowed to add new defendants suggested by the answer: McCown v. Hannah, 3 Or. 302. Leave to amend, by setting up facts known at time of fil- ing pleading not granted without excuse shown: IIol- laday v. Elliott, 3 Or. 340. Distinction between supplementary answer and such amendment: Id. Plaintiff seeking to recover on contract different from that pleaded must get leave to amend: Banks v. Crow, 3 Or. 477. ArlTendment discretion ar}' in Circuit Court; not permitted in Supreme Court: Bamford v. Bamford, 4 Or. 30; Hen- derson V. Morris, 5 Or. 24. Mere vagueness is to be corrected by amendment, not visited by judgment: Foren v. Dealey, 4 Or. 92; Houghton and Palmer v. Beck, 9 Or. 325. On appeal from justice to Circuit Court, amendments changing the issues not allowed: Moser v. Jenkins, 5 Or. 447. 460 Pleadings. Pleadings (continued). Otherwise where the amendment does not change the issue: Kirk v. ^Matlock, 12 Or. 319; Newberg and Abrams v. Farmer, 1 W. T. 182. Amendment not changing issues tried in County Court may he allowed on aj^peal: Jlonroe v. N. P. Coal Min- ing'Co., 5 Or. 509. Amendment by filing written reply not changitag the issues tried in Justice's Court, allowed on appeal: Rohr V. Isaacs, 8 Or. 451. Character of amendments cannot be prescribed by the Supreme Court in remanding a cause to the Circuit Court: Branson v. Oregonian R'y Co., 11 Or. IGl. Discretion of Circuit Court as to character of an)endment is not affected by the fact of a former appeal: Id. Error in refusing to allow amendipent by filing an an- swer offered is waived by filing another omitting the objectionable feature: Bowles v. Doble, 11 Or. 474. Discretion of Circuit Court over amendments, reviewable only in case of abuse: Id.; Ilexter v. Schneider, 14 Or. 184. An amended answer, same as former answer but omitting matters demurred to, is a new answer: Wells v. Apple- gate, 12 Or. 208. When amended answer is filed, the former one and all motions and demurrers relating thereto are withdrawn, and cease to be a part of the record: Id. Complaint, indefinite as to whether in contract or tort, where the facts sustain an action on contract, may be so amended as to sustain an attachment already issued: Suksdorff- v. Bigham, 13 Or. 369. Amendment to coniplaint enlarging the demand, in the absence of fraud, and where no new cause of action is thereby added, does not invalidate an attachment in the action: Id. Great liberality of amendment should be allowed under the Code: Swift v. Mulkcy, 14 Or. 59; New'berg and Abrams v. Farmer, 1 W. T. 1S2. Filing amended answer waives objection to a ruling of the court striking out former answer: Ilexter v. Schneider, 14 Or. 184. It seems, where a plaintiff fails to prove his case as to Pleadings. 461 Pleadings (continued). some of several defendants in an action for tort, he can, on the trial, amend by omitting them: Cooper v. Blair, 14 Or. 255. Copy of pleading amended need not be served, unless the court so orders: Williams & Co. v. Miller & Co., 1 W. T. 88. Where a party demurs, and the court orders amended pleading filed, such order in effect sustains the demur- rer: Id. If demurrer to defective complaint is overruled, and de- fendant answers over, the complaint will be deemed by the appellate court to have been amended in all re- spects in which it could have been amended: Ward v. ^loorey, 1 W. T. 104. Refusal of court to allow amendments on appeal from Justice's Court not changing the issues tried is error: Newberg and Abrams v. Farmer, 1 W. T. 182. Such proposed amendment of a pleading must be made clearly to .ppear to the Supreme Court before it will re- view the action of the District Court refusing to allow the same: Id. When demurrer has been sustained, amendment should be allowed if the pleading be amendable, especially where honest endeavor may be secured by imposition of terms: Renton v. St. Louis, 1 W. T. 215. Filing amended complaint, after saving exception to the sustaining of the demurrer to the complaint, does not waive the objection: Wood v. Mastick, 2 W. T. 64. 9. Demurrer. Multifariousness was subject to demurrer before the Code: White V. Delschneider, 1 Or. 254. Lies in equity for misjoinder of parties defendant: Id. Eri:or in sustaining or overruling demurrer is waived by pleading over: Huffman v. McDaniel, 1 Or. 259; Rich- ards V. Fanning, 5 Or. 356; Wells v. Applegate, 12 Or. 208; Ward v. Moorey, 1 W. T. 104. Demurrer to whole complaint will be overruled if one cause of action therein be well pleaded: Ketchum v. State, 2 Or. 103; Toby v. Ferguson, 3 Or. 27; Simpson V. Prather, 5 Or. 86; Lafleur and Isaacs v. Douglass, 1 W. T. 185. 462 Pleadings. Pleadings (continued). Demurrer, and not motion to strike out, the remedy against insufficient statement of facts: Cline v. Cline, 3 Or. 355. Failure to demur does not waive objection that complaint does not state cause of action: Brown v. Emmerson, 3 Or. 452; King and Lownsdale v. Boyd, 4 Or. 326; Evarts V. Steger, 5 Or. 147; Mack v. Salem, 6 Or. 275; Olds v. Gary, 13 Or. 362. Defense sufficient as pleaded, though false, cannot be reached by demurrer: Torrence v. Strong, 4 Or. 39. Objection that court has no jurisdiction is not waived by failure to demur: King and Lownsdale v. Boyd, 4 Or. 326. Overruling of demurrer, when waived by answering over, cannot be assigned as error: Richards v. Fanning, 5 Or. 356; Olds v. Gary, 13 Or. 362. Failure to demur waives irregularity not jurisdictional in pleading counterclaim: Scheland v. Erpelding,6 Or. 258. Demurrer on the ground that the cause is barred by a statute of limitations, lies only when the pleading shows the fact on its face: Weiss v. Bethel, 8 Or. 522; Wilt v. Buchtel, 2 W. T. 417. Pleading to the merits, in equity, without objecting by de- murrer or answer that plaintiff has a remedy at law, waives such objection: Kitcherside v. Myers, 10 Or. 21. Defective description of land by natural objects, not am- biguous on the face of the complaint, cannot be reached by demurrer: Ladd and Tilton v. Mason, 10 Or. 308. When upon the face of the complaint it appears that other parties are necessary, demurrer for defect of parties is proper; if too many parties, demurrer as not stating facts sufficient: Gohen v. Ottenheimer, 13 Or. 220. ** Multifariousness" is term unknown to the Gode; in de- murrer may be held to mean misjoinder of several causes of action: Id. Demurrer cannot be stricken out on motion: Id. Demurrer for misjoinder of causes of action being sus- tained, a new pleading must be filed: Id. Demurrer is not an absolute admission of the facts, but raises an issue of law i:pon the facts pleaded: Rice v. Rice, 13 Or. 337. Demurrer to a complaint in a divorce suit is not such ad- Pleadings. 463 Pleadings (continued). mission of the charge as is meant by section 494 of the Civil Code (sec. 498, Hill's A. L.): Id. Demurrer to complaint in action on an injunction bond, which fails to allege that the injunction was wrongful, or without sufficient ca.use, should be sustained, but answering over waives the defect: Olds v. Gary, 13 Or. 3G2. That statute of limitations has run, unless full time has expired, is no ground for demurrer, though the suit be in equity: Id. Misjoinder of causes of action, where the plaintiffs rely on allegations of fraudulent misrepresentations which do not appear to have been made to them as a class, is ground for demurrer: Id. If party demurs, and court orders amendment, such order is in effect a sustaining of the demurrer: Williams & Co. V. Miller & Co., 1 W. T. 88. Demurrer under Code is neither the general nor special de- murrer at common law; it is a new creation, with no applicability except in the instances expressed in the statute: Renton v. St. Louis, 1 W. T. 215. Demurrer to a common-law form of pleading is rarely ap- plicable under the Code, though such pleading is gen- erally obnoxious to motions: Id. Right of demurrer is lost by answering, and objections must be taken by some other method: Id. Demurrer must distinctly specify the grounds: Id. Where demurrer to complaint is sustained and exception saved, the objection is not waived by going to trial on an amended complaint: Wood v. Mastick, 2 W. T. 64. 10. Supplemental Pleadings. Supplemental answer in the nature of a plea puis darrein continuance is not a waiver of former pleas, unless in- consistent: Hamlin v. Kinney, 2 Or. 91. Material facts not existing at commencement of suit may be set up by supplemental answer: White v. Allen, 3 Or. 183. Such answer, and an amendment setting up facts known fit time of filing original, distinguished: Ilolladay v. Elliott, 3 Or. 340. Attaching creditor, who has obtained temporary restrain- 464 Pleadings. Pleadings (continued). ing order against foreclosure of fraudulent chattel mort- gage, should, on obtaining judgment on his claim, be allowed to file supplemental bill in the injunction suit showing the rendition of such judgment: Meacham Arms Co. v. Swarts, 2 W. T. 412. Pledges. See Bailments. Police Judge. Police judge may be given powers of justice of the peace within the city, but his jurisdiction cannot be limited to criminal cases: State v. Wiley, 4 Or, 184. His jurisdiction is identical with justice in civil as well as in criminal cases: Id.; Portland v. Denny, 5 Or. 160. Has jurisdiction of all crimes defined by any ordinance of the city: Portland v. Denny, 5 Or. 160. Is .entitled to his salary as compensation in city cases, and the fees earned as justice besides: Id. Legislature has power to fix compensation; construction of charter as to fees in state cases: Adams v. Multnomah Co., 6 Or. 116. Policemen. See Offices and Officers. Possession. See Adverse Possession; Forcible Entry and Detainer; Liens; Notice; Mortgages; Public Lands. Possessory rights of settlers on public lands may be pro- tected from invasion against one having no better title: Woodsides v. Rickey, 1 Or. 108; Lee v. Simonds, 1 Or. 158; Colwell v. Smith, 1 W. T. 92; Ward v. Moorey, 1 W. T. 104. In action for recovery of real property, every presumption is in favor of the possessor: McEwen v. Portland, 1 Or. 300. Possession is notice of equitable rights in the property sufficient to put purchaser on inquiry: Stannis v. Nicholson, 2 Or. 333; Bohlman v. Cofiin and Carter 4 Or. 313; Skellinger v. Smith, 1 W. T. 369. Of note by maker is presumption of payment: Hedges v. Strong, 3 Or, 18. Quiet and exclusive possession is evidence of title until a better is claimed and shown by another: Or. Cas. R. R. Co. v. Or. Steam Nav. Co., 3 Or. 178. Mortgagee in possession has the right to foreclose and to remain in possession until paid, though an action to Possession. 465 Possession (continued). recover the debt is barred by the statute of limitations: Anderson v. Baxter, 4 Or. 105; Roberts v. Sutherlin, 4 Or. 219. Possession of plaintiff, to entitle him to maintain suit to quiet title under section 500 of the Code (sec. 504, Hill's A. L.), must be lawful: Tichenor v. Knapp, 6 Or. 205. Possession, relied on as part performance where contract to convoy land was not in writing, must be visible and exclusive, and taken under contract: Brown v. Lord, 7 Or. 302. Mortgagee in possession is estopped to deny the legality of his possession when sued for rents and profits: Ren- shaw V. Taylor, 7 Or. 315. Possession gained without consent after a parol promise to lease for years gives possessor no rights: Pulse v. Hamer, 8 Or. 251. Possession under color of title is presumed to be co-exten- sive with the boundaries in the deed: Phillippi v. Thompson, 8 Or. 428; Joy v. Stump, 14 Or. 361. Constructive possession of wild lands sufficient under sec- tion 500 of the Code (sec. 504, Hill's A. L.), to quiet title: Thompson v. Woolf, 8 Or. 454. Possession is sufficient evidence of title to sustain conver- sion against a wrong-doer: Krewson Sz Co. v. Purdom, 13 Or. 5G3. But semble, that possession alone is not sufficient to authorize recovery of value, unless accompanied by claim of right: Id. "Where a father purchases land in the name of his infant son, and goes into possession and improves, his posses- sion is his son's possession: Lawrence v. Lawrence, 14 Or: 77. Possession under unacknowledged deed is a species of actual notice: Manaudas v. Mann, 14 Or. 450. Possession of public lands by settler will be protected by the courts from time of entry: Colwell v. Smith, 1 W. T. 92; Ward v. Moorey, 1 W. T. 104. Possession as tenant or intruder presents no impediment to transfer of title: Bullene v. Garrison, 1 W. T. 587. Ob. Dig.— 30 466 Practice. Practice. See Abatement; Actions and Suits; Administra- tion; Admiralty; Affidavits; Answers and Defenses; Appeal and Error; Attachments; Attorneys; Bills and Notes; Complaints; Contracts; Corporations; Costs and Disbursements; Criminal Law; Damages; Depo- sitions; Divorce; Dower; Elections; Eminent Domain; Equity; Evidence; Executions, and Proceedings Sup- plemental; Fees; Filing Papers; Garnishment; Habeas Corpus; Injunctions; Interpleader; Judgment Roll; Jury and Jury Trial; Justice of the Peace; Law of the Case; Liens; Lost Papers; Mandamus; Mortgages; New Trial; Nonsuit; Nuisance; Parties; Payment; Pleadings; Quo Warranto; Reference; Replevin; Re- view, Writ of; Rules of Court; Seals; Summons; Tender; Usury; Variance; Venue; Witnesses. 1. Appearance. 2. Continuance. 3. Control of the Court over Pleadings. 4. Stipulations. 5. Stay of Proceedings. 6. Payment into Court. 7. Trial and Incidents. 8. Trial by the Court. 9. Orders. 10. Miscellaneous. 1. Appearance. Of defendant for any purpose is equivalent to service of summons: Rogue River Mining Co. v. Walker, 1 Or. 341. Voluntary, does not waive time to plead, but informality of process and service only: Harker v. Fahie, 2 Or. 89. Defendant appearing by counsel, and filing answer, can- not claim want of means to employ counsel, as excuse for laches, when applying to court for leave to amend the answer by setting up facts known at the time of filing the original answer: Holladay v. Elliott, 3 Or. 340. Docket entry, reciting appearance, evidence will not be heard in collateral action to show the appearance was special; withdrawal of appearance cannot oust juris- diction: White V. Thompson, 3 Or. 115. Practice. 4G7 Practice (continued). Voluntary, is a waiver of service of summons and com- plaint: White V. Northwest Stage Co., 5 Or. 09. Parties cannot waive service of notice of appeal by volun- tary appearance: Oliver v. Harvey, 5 Or. 3G0; Wolf v. Smith, G Or. 73. Respondent in an equity suit failing to appear in the Su- preme Court is deemed to have abandoned the appeal, and appellant is entitled to a reversal on making a prima facie case: Donegan v. Murphy, 6 Or. 436. The appearing and answering by a guardian for his ward waives irregularities of service: Ankenv v. Blackiston, 7 Or. 407. Recital of appearance in record cannot be contradicted by affidavits on appeal: Cauthorn v. King, 8 Or. 138. Circuit Court has jurisdiction, on appeal from justice, of both defendants, where both appear and defend, though judgment below was against one, and he alone appealed: Id. Appearance by garnishee in person and by attorney at the hearing, cures a defective service upon the garnishee: Carter, Rice, & Co. v. Koshland, 12 Or. 492. Notice of appearance under section 520, Civil Code, is un- necessary, unless the right of attorney_to appear is chal- lenged by the opposite party: Id. Appearance and filing demurrer waives defects of service of process: Williams & Co. v. Miller & Co., 1 W. T. 88. Statute does not permit defendant to move for dissolution of attachment until he has appeared and answered: Rodolph V. Mayer, 1 W. T. 133. Jurisdiction of the court over the person of a defendant cannot be questioned after appearance and answer to the merits: Meigs v. Keach, 1 W. T. 305. Defective service of notice is waived by appearance in the Supreme Court on error: Schwabacher v. Wells, 1 W. T 506. Held, that the defendant, by waiving service of motion to perfect transcript, without protestation, has entered gen- eral appearance: Yesler v. Oglesbee, 1 W. T. 604. Defendants sued under a firm name waive the defect by appearing and pleading: Baxter & Co. v. Scoland and Jensen, 2 W. T. 86. 468 Practice, Practice (continued). Filing demurrer constitutes appearance by the defendant, and judgment in default cannot be rendered thereafter: W. W. P. & P. Co. V. Budd, 2 W. T. 336. Whether District Court can by its rules make service on the opposite party of a demurrer filed with the clerk, essential to an appearance, in view of section 72 of the Codeof 1881, doubted: Id. 2. Continuance, Where it was not shown that there was reasonable expec- tation of procuring the evidence at the next term, con- tinuance denied: State v. Leonard, 3 Or. 157. Witness having no fixed residence, clear showing of prob- ability of obtaining his testimony must be shown: Id. Plaintiff in notice of contest of election cannot on motion obtain hearing at earlier day: Myers v. Warner, 3 Or. 212. Issues with some of defendants not being made up, motion by plaintiff for continuance premature: McCown v. Hannah, 3 Or. 302. On death of party, his representatives cannot appeal until they obtain an order allowing continuance in their names: Dick v. Kendall, 6 Or. 166. Application for such order made within one year is in time, although the order allowing the continuance of the suit by them is not made until after the expiration of a year: Id. Suit is suspended during the time from the death to the allowance of the order, and such time is not any part of the period allowed for appeal: Id. After trial commences, it is within the discretion of the court to adjourn to future time to enable a party to ob- tain certain written evidence: Young v. Patton, 9 Or. 195. Continuance cannot be claimed as a right in a divorce suit by party negligently allowing her time to take tes- timony to expire: Savage v. Savage, 10 Or. 331. Granting or refusing continuance is discretionary, and not reviewable on appeal: State v. O'Neil, 13 Or. 183; Thompson v. Territory, 1 W. T. 547. Afii davit for, must state the facts upon which belief that witness can be had is founded: Id. Practice. 469 Practice (continued). Due diligence must be shown in procuring testimony, to entitle party to a continuance: Roeder, Peabody, & Co. V. Brown, 1 W. T. 112. Same showing must be made in criminal as in other cases: Thompson v. Territory, 1 W. T. 547. Defendant is not entitled to a continuance as a matter of right under section 7 of the Criminal Practice Act: Id. 4. Stipulations. Stipulation is construed, and intention ascertained from the language used: Groslouis v. Northcut, 3 Or. 394. Stipulation that party was divorced in a certain suit is an admission of jurisdiction of the court to grant the di- vorce: Id. Parties cannot stipulate to waive notice of appeal, and give the court jurisdiction: Oliver v. Harvey, 5 Or. 360. Stipulation as to submission of cause to court without jury for trial during vacation construed: Arrigoni v. Johnson, 6 Or. 167. When the facts are stipulated in a trial by the court with- out jury, no findings of fact are necessary: Frush v. East Portland, 6 Or. 281. Testimony may be taken by referee appointed by the court at request of parties, and the cause tried in vaca- tion if so stipulated; Roy v. Horsley, 6 Or. 382. Stipulation for a decree, entered into by some of the par- ties, affecting the final disposition of property rights of all the parties to a suit, cannot be enforced: Adams v. Wilson, 6 Or. 391. 8. Control of the Court over Pleadings. On appeal from default in County Court, defendant can- not put in answer: Cain v. Harden, 1 Or. 360. Abatement should be pleaded in separate answer, and dis- posed of before answer to merits: Hopwood v. Patter- son, 2 Or. 49. No amendments which change the issues tried in Justice's Court are allowed in Circuit Court: Moser v. Jenkins, 5 Or. 447; Newberg and Abrams v. Farmer, 1 W. T. 182. But amendment not changing the issues may be al- lowed; Kirk v. Matlock, 12 Or. 319. 470 Practice. Practice (continued). And an amendment not changing issues, tried in County Court may be allowed: Monroe v. N. P. Coal Mining Co., 5 Or. 509. Reply may be filed to counterclaim in answer in Circuit Court, though in Justice's Court it was made orally, and not entered in the docket: Rohr v. Isaacs, 8 Or. 451. Supreme Court may remand a case, with leave to amend pleadings in court below: Branson v. Or. R'y Co., 10 Or. 278. The power of the Circuit Court, in regard to the nature and extent of the amendments, is not affected by the facts that the case was so remanded, and Supreme Court has no power to prescribe their character: Bran- son V. Or. R'y Co., 11 Or. 161. ' Court cannot make a suit in equity out of facts alleged, as in an action at law: Knowles v. Herbert, 11 Or. 54; S. C, 11 Or. 240; Beacannon v. Liebe, 11 Or. 443. ' Judgment on the pleadings, except upon failure to reply, condemned as bad practice: Bowles v. Doble, 11 Or. 474. I Court has no right, after erroneously entering default, and refusing to set same aside on showing made, to give effect to a stipulation allowing defendant to plead upon waiv- ing defense of statute of limitations: Mitchell v. Camp- bell, 14 Or. 454. When the court directs amendment of a pleading, copy need not be served unless so ordered: Williams & Co. V. Miller & Co., 1 W. T. 88. Qussre, whether by stipulation, without order of court, time for filing transcript on appeal can be enlarged: Peterson v. Foss, 12 Or. 81. Stipulation to waive defense of statute of limitations, upon leave to plead, after default has been erroneously en- tered, and the court has declined to set the same aside, is forced from the defendant, and he is not bound by it: Mitchell v. Campbell, 14 Or. 454. Quxre, whether in any event such stipulation will stand, although made upon sufiicient consideration: Id. 5. Stay of Proceedings. Doctrine of parol demurrer is not recognized in Oregon: English V. Savage, 5 Qr. 518. Practice. 471 Practice (continued). When an undertaking for stay of proceedings on appeal has been filed, the Circuit Court may order recall of execution issued: Bentley v. Jones, 8 Or. 47. To prevent surprise or injustice, court on proper showing might stay the proceedings, where sheriff has made a false return, regular on its face, until the question of the return is settled: Washington Mill Co. v. Kinnear, 1 W. T. 99. 6. Payment into Court. Money paid into court under protest, in action to condemn land, was upon motion ordered paid to the parties en- titled to it: HoUaday v. Elliott, 3 Or. 341. Tender and payment into court in such case is an admis- sion of damages to the amount tendered, and the money paid in belongs to the defendant: Oregon R'y & Nav. Co. V. Oregon Real Estate Co., 10 Or. 444. But does not preclude defendant from defending against the recovery of any greater sum: Simpson v. Carson, 11 Or. 361. 7. Trial and Incidents. Charge of fraud in procuring judgment by confession should not be finally determined on motion and affida- vits: Miller v. Oregon City Mfg. Co., 3 Or. 24. In action to condemn land, the issues of value, and whether the land is subject to appropriation, may be tried to- gether by consent: Oregon and Cascade R. R. Co. v. Baily, 3 Or. 164. Under the statute, they are distinct defenses, and must be made in separate trials: Oregon Central R. R. Co. v. Wait, 3 Or. 428. Under certain pleadings in an action to condemn lands, defendant allowed to open and close: Oregon and Cal- ifornia R. R. Co. V. Barlow, 3 Or. 311. The trial includes the rendition and receiving of the ver- dict: State v. Spores, 4 Or. 198. No proof of damages is necessary, where judgment is ren- dered for want of answer: White v. Northwest Stage Co., 5 Or. 99. But see Hadlan v. Ott, 2 W. T. 165. How exceptions must be taken: Richards v. Fanning, 5 Or. 356; Murray v. Murray, 6 Or. 17; Kearney v. Snod- grass, 12 Or. 311. 472 Pbactice. Practice (continued). Error to exclude testimony of witness present during the examination of other witnesses, against the order of the court, but he may be punished for contempt: Hubbard V. Hubbard, 7 Or. 42, Court has discretion to admit evidence on promise that the same will be subsequently connected, and made ad- missible: Bennett v. Stephens, 8 Or. 444. Error to permit attorney, against objection, in his argu- ment, to assume or state facts not proved: Tenny v. Mulvaney, 8 Or. 513. Where the objection made to the introduction of evidence was specific, all other grounds are waived: Ladd and Bush V. Sears, 9 Or. 244. Attorney, in opening case to jury, is not confined to gen- eral statement of the issues, but nlay detail the particu- lar facts intended to be proved: Long and Spaur v. Lander, 10 Or. 175. Use of diagram by witness, not introduced in evidence, but shown to be correct, permissible: Sheppard v. Yo- cum and De Lashmutt, 10 Or. 402. Objection to proof of a defense, taken at trial, on the ground that the allegation is defective, held bad prac- tice; demurrer or motion non obstante is the proper course: Specht v. Allen, 12 Or. 117. Documentary evidence may be admitted provisionally, and instructions as to their effect afterward given: Smith V. Shattuck, 12 Or. 362. No error for court to limit counsel to less than two hours in argument to jury: Hurst v. Burnside, 12 Or. 520. Attention of court to tampering with witness must be called, to be available on appeal: Tucker v. Flouring Mills Co., 13 Or. 28. It is the duty of plaintiff to elect which defendants he will proceed against, where several are improperly joined: Tyler v. T. of T. A. & P. U., 14 Or. 485. Where the facts are admitted, entitling plaintiff to dam- ages, merely nominal damages will be adjudged where he moves for judgment and does not ask for trial: Had- lan V. Ott, 2 W. T. 1G5. Where answer admits part of the allegations of the com- plaint, the plaintiff is not relieved from proving the Practice. 473 Practice (continued). other controverted allegations: Breemer v. Burgess, 2 W. T. 290. Where part of the items of plaintiff's demand is admitted by the pleadings, he is entitled to recover interest on such items from the commencement of the action: Id. If the court committed error in admitting evidence, the error is cured by withdrawing such evidence from the jury in the charge: P. S. I. Co. v. Worthington, 2 W. T. 472. 8. Trial by the Coukt. Findings must be sufficient to sustain the judgment, and must cover all the issues: Fink v. Canyon lload Co., 5 Or. 301. Party wishing to object to the sufficiency of the findings should apply to the Circuit Court for further and more specific findings, or procure them to be put in bill of ex- ceptions: Luse V. Isthmus Transit R'y Co., 6 Or. 125; Eakin v. McCraith, 2 W. T. 112. Findings need only cover the material issues: Philomath College V. ITartless, 6 Or. 158. Where the facts are stipulated, no findings of fact are necessary: Frush v. East Portland, 6 Or. 281. Finding of fact is conclusive upon parties to the suit in favor of persons not parties: Knott v. Knott, 6 Or. 334. Findings are as a verdict, and will be set aside in the same manner and for the same reasons: Ilallock v. Portland, 8 Or. 29; Phelps v. Steamship City of Pan- ama, 1 W. T. 518; Tierney v. Tierney, 1 W. T. 5G8; Bullene v. Garrison, 1 W. T. 587; Baker and Hamilton V. McAllister, 2 W. T. 48. General finding that the complaint is true and answer un- true is sufficient: McFadden v. Friendly, 9 Or. 222. Findings of fact and law are "separately stated" when severable and distinct: Weissman v. Russell, 10 Or. 73. Where the findings cover the new matter in the answer, a reply, though absent from the record, is presumed to have been filed: Id. Ambiguous finding is given a construction that accords with pleadings and supports judgment: Whitlock v. Manciet and Bignc, 10 Or. 166. Findings of court below or referee in equity cases may be 474 Practice. Practice (continued). reviewed on the evidence on appeal: Howe v. Patter- son, 5 Or. 353; O'Leary v. Fargher, 11 Or, 225, overrul- ing Fahie v. Lindsay, 8 Or. 474. On waiver of jury trial, the provision of the Practice Act requiring court to state separately its findings of fact and law does not apply to divorce cases: Madison v. Madison, 1 W. T. 60. Findings of fact by the judge answer to a special verdict, while the conclusions of law are in the nature of a gen- eral verdict: Willey v. Morrow, 1 W. T. 475. Trial by court in a law case, there being no waiver of jury trial, is the exercise of a power not authorized by law: Johnson v. Goodtime, 1 W. T. 484. In divorce cases, being a proceeding at law, the findings of the court are as the verdict of a jury, and not to be set aside unless manifestly contrary to the evidence: Tierney v. Tierney, 1 W. T. 568. Supreme Court will not reverse a finding of fact if there be any evidence to support it, though said court would make a different finding if it were an open question: Baker and Hamilton v. McAllister, 2 W. T. 48. Where the findings are not commensurate with the issues, the remedy is by application to the court for additional findings not appeal: Eakin v. McCraith, 2 W. T. 112. The findings may be amended by the court at any time before judgment: Calhoun v. Gilliland, 2 W. T. 174. 9. Orders. Nunc pro tunc order correcting record, when discretionary and when not: Road Co. v. Douglas County, 5 Or. 406. A contract authorized by the County Court, though not in the form of an order, is properly entered in the journal: Road Co. v. Douglas County, 6 Or. 299. Order dissolving or refusing to dissolve an attachment is a final order from which an appeal lies: Sheppard v. Yocum, 11 Or. 234; Suff"ern v. Chisholm, 1 W. T. 486. When the rights of third parties have not intervened, a court may amend its records to make them conform to the truth: Carter, Rice, & Co. v. Koshland, 12 Or. 492. Where a long time after final decree is entered it is cor- rected by a nunc pro tunc order, it seems right of appeal runs from the date of the latter order: Lee v. Imbrie, X3 Or. 510. Practice. 475 Practice (continued). Judgments nunc pro tunc are only allowed in favor of justice, never to work injustice: Hays v. Miller, 1 W. T. 143. Judge in vacation can make orders nunc pro tunc correct- ing record of prior term only upon express statutory authority, and statute must be strictly followed: Hale v. Finch, 1 W. T. 517. Order, in awarding custody of and fixing allowance for support of children in divorce case, is interlocutory and not final: Tierney v. Tierney, 1 W. T. 568. Party must take notice of all orders of the court, and pleadings filed pursuant thereto: Williams & Co. v. Miller & Co., 1 W. T. 88. 10. Miscellaneous. Record must show affirmatively that defendant was served with amended complaint to sustain judgment thereon for want of answer: Tolmie v. Otchin, 1 Or. 95. No evidence receivable in Supreme Court in admiralty cases: Cutler v. Steamship Columbia, 1 Or. 101; Nickels V. Griffin, 1 W. T. 374; contra, Phelps v. S. S. City of Panama, 1 W. T. 615. On motion for leave to file answer in the Circuit Court after default below, affidavits cannot be heard: Cain v. Harden, 1 Or. 360. Reasonable time will be allowed by Circuit Court to bring up proceedings by certiorari: Thompson v. Multnomah County, 2 Or. 34. When the account sued on is insufficiently set forth, the defendant's remedy is by motion to make more definite: Flanders v. Ish, 2 Or. 320. Where abatement and bar were pleaded in same answer, defendant was compelled to elect: Oregon Central -R. R. Co. v. Wait, 3 Or. 91. On motion for leave to answer after default, verified an- swer should be presented with the motion: White v. Northwest Stage Co., 5 Or. 99. An action is pending in the trial court until appeal is per- fected, or the time for taking appeal has elapsed: Dick ■ V. Kendall, 6 Or. 166; Garrison v. Cheeney, 1 W. T. 489. Application for continuance in the name of personal rep- resentatives of deceased party if made within a year ia 476 Practice. Practice (continued). in time, though the order be not made until after the expiration of the year: Id. Power of a court of equity, where attorney is guilty of negligence or misconduct to the rights of his client, to grant relief in a summary manner: Branson v. Or. R'y Co., 10 Or. 278. A party must object to the verification of an account fur- nished on demand within a reasonable time, or the objection is waived: Robbins v. Benson, 11 Or. 514. Where remedy is not pointed out by Code, suitable pro- cess may be adopted conformable to the Code: Aiken V. Aiken, 12 Or. 203; Carter, Rice, & Co. v. Koshland, 13 Or. 615. Courts are invested with large discretionary powers in matters of practice: Mitchell v. Campbell, 14 Or. 454. A party in court must take notice of all orders of the court in the case, and all pleadings filed: Williams & Co. V. Miller & Co., 1 W. T. 88. An attorney may discontinue a suit by virtue of his gen- eral power: Simpson v. Brown Bros. & Co., 1 W. T. 247. Right of court to refuse to hear attorney representing dif- ferent parties to the suit whose interests are conflict- ing: Id. Court will not allow issue to be joined, where both parties are represented by the same attorney: Clarke Co. v. Commissioners of Clarke Co., 1 W. T. 250. Professional confidence once reposed cannot be divested by expiration of the professional employment; court refuses to hear attorney formerly on the other side of the case: Nickels v. Gritfin, 1 W. T. 374. Civil practice in law and equity, as affected by the sev- eral codes successively adopted, and by the rules of the Supreme Court of the United States: Garrison v. Cheeney, 1 W. T. 489. Practice of Medicine. See Physicians and Surgeons. Precincts. See Elections. Pre-emption. See Public Lands. Preferences. See Assignment for Benefit of Creditors. Prescription. See Adverse Possession; Easements; Water and Wiitercourses. Presumptions. See Appeal and Error; Evidence; Juris- diction. Public Lands. 477 Principal and Agent. See Agency. Principal and Surety. See Suretyship. Prior Appropriation. See Water and Watercourses. Priority. See Chattel ^Mortgages; Deeds; Liens; Mortgages. Privity. See Deeds; Judgments and Decrees; Notice. Probable Cause. See Malicious Prosecution; Slander and Libel. Probate Courts. See Administration; County Courts; Courts; Jurisdiction. Process. See Appeal and Error; Attachments; Executions, and Proceedings Supplemental; Jurisdiction; Practice; Summons. Professional Skill. See Physicians and Surgeons. Promise of Marriage. See Marriage. Promissory Notes. See Bills and Notes, Protest. See Bills and Notes. Provisional Government. See Constitutional Law. Public Lands. See Constitutional Law; Dedication; Emi- nent Domain. 1. Possession, Pre-emption, and Purchasers' Rights. 2. Town Sites. 3. Mineral Lands. 4. Donation Act. 5. School Lands. 6. Swamp and Tide Lands. 7. Homesteads. 8. Patents and Certificates. 1. Possession, Pre-emption, and Purchasers' Rights. Courts have power to protect settlers' possessory rights from invasion: Woodsides v. Rickey, 1 Or. 108; Lee v. Simonds, 1 Or. 158; Colwell v. Smith, 1 W. T. 92; Ward V. Moorey, 1 W. T. 104. State courts entertain no proceedings dependent upon ^acts to be determined in the United States land-office: Moore v. Fields, 1 Or. 317; Colwell v. Smith, 1 W. T. 92; Ward v. Moorey, 1 W. T. 104; Shockley v. Brown, 1 W. T. 463. Mere possessor who abandoned without gaining title could not charge land with easement: Lownsdale v. Portland, ' 1 Or. 381. Rights of British subjects during joint occupancy merely possessory: Cowenia v. Hannah, 3 Or. 4G5. 478 Public Lands. Public Lands (continued). Effect of treaty of 1846, upon rights of occupants: Id.; Puget Sound Agricultural Co. v. Pierce Co., 1 W. T. 159. Counties in Oregon cannot pre-empt land for county seat under act of May 26, 1824: Whitlow v. Reese, 4 Or. 335. Grant to the state, by act of 1841, operated as a present grant upon admission of the state into the Union, sub- ject to future selection and identification: Wardwell v. Paige, 9 Or. 517. Pre-emption from state, omitted by treasurer in his state- ment of lands sold, may be proved by other evidence: Id. Pre-emption by settler on state lands acquired under act of Congress of September 4, 1841, held superior to title of one claiming the land as school land: Id. Notice to subsequent purchasers of claims of pre-emptors need not be proved; rule of caveat emptor applies to subsequent purchasers: Id. Pre-eraptor, who has entered, may sell before patent issues: Richards v. Snyder and Crews, 11 Or. 501. Treaty of 1846, adjusting the boundaries and rights of the United States and Great Britain, and expressly pre- serving to the Puget Sound Agricultural Company its property rights, is but declaratory of the law of nations in the latter respect: Puget Sound Agricultural Co. v. Pierce Co., 1 W. T. 159. Possessory and property rights of individuals are undis- turbed by change of sovereignty: Id. The treaty operated to vest title in said company, as a legislative act to that effect: Id. The fact that the lands had not been segregated from the public domain would not prevent title from vesting in the company: Id. Though the legal title be in the United States, the com- pany has such equitable interest as is subject to taxa- tion: Id. Possessory right to the land of said company, the title to which is still in the United States, is a good defense in action of ejectment brought by lessee of the company: Roberts v. Lucas, 1 \V. T. 20-5. On decease of intestate pre-emptor, whose title is still inchoate, a salable possessory right passes to the ad- Public Lands. 479 Public Lands (continued). ministrator: Burch v. McDaniel and Johnson, 2 W. T. 58. Duty of «uch administrator to perfect the title of the land in favor of the' heirs: Id. Aside from such duty, administrator is free to dispose of the possession for the benefit of the estate: Id. Pre-emption statutes place the restriction on the adminis- trator which was on the prc-emptor, against transferring any interest in the land; Id. In action of ejectment, where plaintiff claims under certi- cate of purchase, defendant may show a certain state of facts by reason whereof the commissioner caused such certificate to be canceled: Hays v. Parker, 2 W. T. 198. Where in the course of trial in such action it appears that the claims of the parties at the time of the commence- ment of the action were being waged, and not fully de- termined in the department of the interior, the action should bo dismissed at plaintiff's cost: Id. Decision of the secretary of the interior upon mixed ques- tions of law and fact properly presented for his decision cannot be reviewed in a court of equity, fraud or mis- take not being alleged: Starks v. Brown, 2 W. T. 426. 2. Town Sites. Town-site act of Congress, passed May 23, 1844, not appli- cable to Oregon before 1854: Marlin v. T 'Vault, 1 Or. 77; Lownsdale v. Portland, 1 Or. 381; Starr v. Stark, 2 Or. 118; Whitlow v. Reese, 4 Or. 336. By entry and payment under town-site act, town became at once vested with legal title in trust: Eakin v. Mc- Craith, 2 W. T. 112. 3. Mineral Lands. Rights of occupancy under act gf Congress of July 26, 0866: Gold Hill Q. M. Co. v. Ish, 5 Or. 104. Provisions relative to pre-emption not obligatory: Id. Patent for agricultural land does not pass known deposits of precious metals: Id. Failure of government surveyors to segregate mining land from agricultural land does not defeat rights of occu- 'pant miners: Id. 4. Donation Act. Land settled as town sites may be held as donations: Marlin v. T 'Vault, 1 Or. 77. 480 Public Lands. Public Lands (continued). Settler with Indian wife is "married" man within the fourth section of the act: Vandolf v. Otis, 1 Or. 153. Residence is determined by the facts in each case: Lee v. Simonds, 1 Or. 158. Claim need not be in "compact form" to enable courts to protect possessory rights; and whether it be in such form will be left to the determination of the land-office: Id. If settler die before the law took effect, his heirs do not inherit or hold by virtue of his residence or cultivation: Ford V. Kennedy, 1 Or. 167; Cowenia v. Hannah, 3 Or. 4G5; Newton v. Spencer, 3 Or. 548. Occupant cannot be dispossessed by action at law before the completion of his residence and cultivation, when the surveyor-general has determined contest in his favor: Pin V. Morris, 1 Or. 230. Donee may maintain action, under the statute, for the re- covery of real property, against one who shows no title except possession: Keith v. Cheeny, 1 Or. 285. If wife die before compliance with act, without issue, hus- band does not take her half of the claim: Johnson v. McGinniss, 1 Or. 292; White v. Allen, 3 Or. 103. Donation law was the first act of Congress affecting pub- lic lands in Oregon: Lownsdale v. Portland, 1 Or. 381. Mere possessor prior to September 27, 1850, who aban- doned land, could charge it with no easement: Id. Dedication prior to time law took effect void, title being in the United States: Leland v. Portland, 2 Or. 46. Claimant must set land apart by boundaries, and a change of location is abandonment: Carter v. Chapman, 2 Or. 93. What residence and cultivation sufficient: Starr v. Stark, 2 Or. 118. Rights of donee under the donation law: Lee v. Summers, 2 Or. 260; Brazee v. Schofield, 2 W. T. 209. Settler on land before law took effect has sufficient inter- est to be able to attack patent to the land issued to one not entitled: White v. Allen, 3 Or. 103. Claimant, before patent, has an interest subject to judicial sale: Groslouis v. Northcut, 3 Or. 394. On death of settler before proof made, his right descends to his heirs, who may make proof: Delay v. Chapman, 3 Or. 459. PoBLic Lands. 481 Public Lands (continued). The right so acquired by the heirs is not an estate which. could be encumbered or administered upon: Id. When such licirs prove and obtain patent, they take by purchase, not by inheritance: Id. After heirs obtain patent, they have an estate which they can encumber, ahen, or devise: Id. In the estate acquired, or to be acquired, by such heirs, the administrator has no right or interest: Id. British subject in possession under treaty of 1846 gains no rights by donation law: Cowenia v. Hannah, 3 Or. 4G5. The act makes no provision for one dying before its pas- sage; it only provides for persons in esse: Id. Descent of lands granted under section 5 of the act, not limited by section 4: Chambers v. Chambers and Maury, 4 Or. 153. Lands granted under section 5 of said act descend ia accordance with the provisions of the statute of de- scents and the common law: Id. Act operated as a present grant, and vested in donee the fee, subject to conditions subsequent: Blakesly v. Cay- wood, 4 Or. 279; Dolph v. Barney, 5 Or. 191. Though under the fourth section of the act, no alien is entitled to patent until naturalized, the grant is not void where before patent issues alien dies before naturalization, and his heir takes: Id. The right of the wife to one half of the claim does not depend on the number of acres taken: Jette v. Picard,. 4 Or. 296. Upon compliance with the requirements, the title vests by- virtue of the act itself: Dolph v. Barney, 5 Or. 191;. Brazee v. Schofield, 2 W. T. 209; Maynard v. Hill, 2 ^y^. 321. Title may be conveyed before patent, after the require- ments have been complied with: Id.; Ramsey v. Loomis, 6 Or. 367. Sale by man and wife before patent binds heirs of wife to whom her patent subsequently issues: Id. The t\venty-second section embraces two classes of widows capable of taking: Blachley v. Butler, 5 Or. 463. Wife's interest and right is perfected in her by virtue of Ok. Dig.— 31 482 Public Lands. Public Lands (continued). residence and cultivation without further act: Murray V. Murray, 6 Or. 26; Springer v. Young, 14 Or. 280. Wife's right under the Donation Act is not affected by the repeal of the act of the legislature of 1852, which pro- vided that her interest should be under her separate control: Linnville v. Smith, 6 Or. 202. Land claimed under the act is " segregated " when the notification is filed: Ramsey v. Loomis, 6 Or. 367. Widow is entitled to dower in husband's claim, conveyed by him after complying with the act, but before he received a patent: McKay v. Freeman, 6 Or. 449. Otherwise, where the residence and cultivation were not complete before husband's death: Farris v. Hayes, 9 Or. 81. Holder of title bonds to donatio^ claim has suflScient estate, before patent, to redeem at tax sale: Rich v. Palmer, 7 Or. 133. Dower attaches in favor of widow, under section 4, where husband dies after residence and cultivation, before securing a patent: Love v. Love, 8 Or. 23. Husband's estate, after four years' cultivation, and before patent, descends to the children, and the wife takes her half and dower in the husband's half: Id. Bond for deed, made prior to September 27, 1850, can be enforced against obligee after he obtains patent: Parker v. Rogers, 8 Or. 183. Claimant under Donation Act, conveying before patent by deed with covenants for further assurance of title, after patent holds naked legal title: Baker v. Woodward, 12 Or. 3. Amendment of 1870, to section 378, Civil Code (sec. 382, Hill's A. L.), respecting limitations of actions between claimants, was intended to apply only to controversies arising under section 501, between rival claimants to the same tract as patentees: Id. Conveyance by deed, without covenants, of riparian rights, by claimant, before completion of his term of residence and cultivation, passes no title: McCann v. Oregon R'y etc. Co., 13 Or. 455. Title of husband in lands, purchased in his name with proceede of sale of his own and the wife's half of dona- Public Lands. 483 Public Lands (continued). tion claim, is subject to an implied trust in favor of wife for an undivided half: Springer v. Young, 14 Or. 280. No evidence in this case to show that donation claimant was without heirs capable of taking his estate: Ward V. :Moorey, 1 W. T. 104. The oath required under section 12 of the act may be taken at time of final proof: Id. Dower extends to donation claims; the right of eminent domain reserved does not defeat the right of dower therein: Ebey v. Ebey and Beam, 1 W. T. 185. Plaintiff claiming under Donation Act need not set forth in his complaint that the land was not within a mile of a military post or reservation. If advantage is to be taken of this fact, it must be as a defense: Shockley v. Brown, 1 W. T. 464. Title could not be acquired before 1850, without first mak- ing affidavit to the several requirements prescribed by section 12 of the act: Id. Complaint seeking to establish title under the act must allege compliance with the several requirements under section 12 of the act: Id. Period of residence accepted by the United States, as compliance on the part of the settler, cannot be ques- tioned by one not claiming under a prior grant: Bul- lene v. Garrison, 1 W. T. 587. Possession under quitclaim deed executed before the expiration of the four years' residence is possession under contract prohibited by law, and gives no color of title: Id. Right of wife is merely inchoate until the requirements of the act, in residence and cultivation, and other re- spects, have been complied with: Maynard v. Valentine, 2 W. T. 3; Maynard v. Hill, 2 W. T. 321. The statute contemplates residence and cultivation by wife as well as husband: Id. Qusere, whether wife might not reject this gift of the gov- ernment, by refusing to partake of the husband's domi- cile: Id. The act, and not the patent, is the instrument which effects the transfer of title; the latter only evidences 484 Public Lands. Public Lands (continued). title, and relates back to the act: Brazee v. Schofield, 2 W. T. 209. Claimant under patent issued to widow and heirs of a de- ceased donation claimant is estoppec^from denying that such widow and heirs acquired title under the act: Id. Residence and cultivation of man after divorce is that of a single man: Maynard v. Hill, 2 W. T. 321. Wife who was divorced before husband had completed his residence and cultivation, though out of the state at the time the act took effect, acquires no rights under the act, not having complied with the requirements of resi- dence and cultivation: Id. 5. School Lands. Register of state lands in the La Grande District acts simply as agent for the commissioners, and no appeal lies from his decision to Circuit Court: Anderson v. Laughery, 3 Or. 277. Judicial notice is taken of laws by which school super- intendent sells to private person: Dolph v. Barney, 5 Or. 192. His deed, if regular on its face, is prima facie evidence of his power to convey: Id. First applicant, after the six months allowed for settlers to apply, is entitled to preference in sale: Hurst v. Ilawn, 5 Or. 275. Decision of commissioners is conclusive on the state, but does not prevent a party from showing that the deed was fraudulently obtained: Id. In foreclosure suits by the commissioners, the district at- torney is entitled to prosecute, and to secure the stat- utory fee, though other counsel may be employed to assist: Claim of Ison, 6 Or. 465. Otherwise, where the state is not a party of record: Haz- ard's Appeal, 9 Or. 366. Board of commissioners is not an inferior tribunal, but a co-ordinate branch of the state government: Corpe v. Brooks, 8 Or. 222. Its decisions are not subject to review by the courts: Id. But a court of equity may decree patentee to hold as trustee for one having better equitable title: Ward well V. Paige, 9'Or. 517. Public Lands. 485 Publio Lands (continued). Purchaser has a right to sever timber before completing payments: Schmidt v. Vogt, 8 Or. 344. The title to funds arising from the sale of school lands is in the state: State v. Chadwick and Brown, 10 Or. 423. State, and not the commissioners, should sue for an ac- counting as to such funds: Id. Commissioners' power and authority over such funds; evi- dence in suit for an accounting: Id. 6 Swamp and Tide Lands. Act of September 28, 1850, was extended to Oregon by act of March 12, 1860: Gaston v. Stott, 5 Or. 48. Operated as a grant in pressenti to the state, passing fee- simple title: Id. Patent provided for in section 2 operates as further assur- ance of title: Id. The trust raised by the act of 1850 is a personal not a property trust, and does not run with the land: Id. State could select and dispose of swamp-lands before patent is issued by. the general government of the United States: Id. Proviso of section 1, act of 1860, does not operate as a limitation upon the grant: Id. State lost no rights by not making selection within two years: Id. The provision of the second section of the act of 1860, in relation to the time within which selections were to be made by the state, is directory, and the state loses no right by not strictly complying therewith: Id. The sovereignty of the state to tide-lands attached on its admission to the Union: Hinraan v. Warren, 6 Or. 408. The United States has no power to dispose of tide-lands within the territory before the admission of the state, ^and its deed to such land is void: Id. A grant of the United States can extend only to the meander line of high tide; Id.; Parker v. Taylor, 7 Or. 436. State has the exclusive right to sell the tide-lands, and a shore-owner, complying with the act in purchasing, may •erect wharves frou) his land into navigable water, pro- vided he docs not impede navigation: Id. Accretions added to lauds of a riparian owner on a navi- 486 Public Lands. Public Lands (continued). gable stream cannot be entered as swamp-lands: Minto V. Delaney, 7 Or. 337. Such owner takes to the stream, and not merely to a meander line improperly located by United States sur- vey: Id. Application to file on such land as swamp-land is void, and casts no cloud on owner's title: Id. The state owns the tide-lands, and may sell them: Parker V. Taylor, 7 Or. 435. Grantee of riparian owner has exclusive right to a deed from the state, if he applies in time: Parker v. Rogers, 8 Or. 183. Legislature has recognized and favored the rights of pur- chasers of tide-lands from riparian owners: Id.; De Force v. Welch, 10 Or. 507. Purchaser of tide-lands under act of 1872, held to be no trustee for one claiming to be the equitable owner thereof: Shively v. Parker, 9 Or. 500. Sovereign acquires title to land gradually submerged by the sea: Wilson v. Shiveley, 11 Or. 215. Owners of abutting property entitled to purchase tide- land: Id. Patent obtained by purchaser, fraudulently representing himself the owner of the land adjoining tide-land, will be canceled in equity, and the land conveyed to the owner of the abutting property: Id. Riparian owner's rights are not derived from the state, though held in subordination to the rights of the pub- lic: Wilson V. Welch, 12 Or. 353. Quxre, whether shore-owner purchasing abutting tide- lands under act of 1872 gains any rights that he had not before: Id. The right given to shore-owner by that act is a mere op- tion to purchase, not an equitable title: Id. Tide-lands are lands covered by ordinary tides, that be- tween ordinary high and low water mark, and must be alternately covered and left dry by ordinary tides: An- drus V. Knott, 12 Or. 501. Lands on navigable streams, where the tide ebbs and flows, may be tide-lands, but not lands covered with water three fourths of the year: Id. Public Land3. 487 Public Lands (continued). Eflfect of repealing clause of 1878 (c. 52, Hill's A. L.) was to take away unexercised right of preference to shore-owners in buying tide-lands from the state: 01- ney v. Moore, 13 Or. 238. Owners who had already availed themselves of their right to purchase were not affected by the repeal: Id. State having sold to a fraudulent purchaser, its power is exhausted, and it cannot sell to another: Id. But suit in equity by the abutting owner lies against such fraudulent purchaser to have his title inure to the party entitled to it: Id. This right of suit is not cut off by the repeal of the act giving the right to abutting owner to purchase, but only by general statute of limitations: Id. Shores of navigable streams are not the property of the United States, but of the state: Johnson v. Knott, 13 Or. 308. The point to which water usually arises in an ordinary season is the true meander line and boundary of the United States: Id. Tide-land act of 1874 refers only to such land as was sub- ject to sale, and was susceptible of cultivation and' reclamation: Id. 7. Homesteads. Homestead commuted by pre-emption, so that patent is obtained before the five-years' residence, is not liable for debts incurred prior to patent: Clark v. Bay ley, 5 Or. 343. Entry of homestead by one in trust for another will not be recognized, or the trust enforced in equity: Id. Lien of judgment for costs in a criminal case does not at- tach to homestead before patent: State v. Neil, 7 Or. 041. One who has taken the preliminary steps to secure home- stead is entitled to the aid of equity to put him in pos- session, when prevented from entering by one without title: Kitcherside v. Myers, 10 Or. 21. Such person in possession has s\ifficient title and posses- ■sion to maintain action for trespass by cattle upon his claim: French v. Cresswell, 13 Or. 418. 488 Public Lands. PvLjlic Lands (continued). Contracts for sale of soldiers' additional homestead scrip are void: Mackintosh v. Renton, 2 W. T. 121. 8. Patents and Certificates. Certificates are issued by register and receiver, who are the successors of the surveyor-general: Keith v. Cheeny, 1 Or. 285. Certificate is evidence of residence, cultivation, and other facts recited: Id.; Willamette Co. v. Gordon, 6 Or. 175. Patent may be attacked and set aside for fraud: Starr v. Stark, 2 Or. 118. A patent issued to city of Portland, unimpeached by better title, was held valid for the purposes of this case: Id. To set aside patent, party attacking must have such right in law as to be able to claim the same from the govern- ment: Lee V. Summers, 2 Or. 260. Patent issued to wrong person not void; passes title, but patentee is trustee for the benefit of the rightful claim- ant: White V. Allen, 3 Or. 103. Patent is proof of the regularity of the preliminary pro- ceedings: Id. Patent under swamp-land act of 1850 operates merely as a further assurance of title: Gaston v. Stott, 5 Or. 48. To agricultural land does not pass known deposits of previous metals: Gold Hill Q. M. Co. v. Ish, 5 Or. 104. Issuance of a patent under the Donation Law is a mere ministerial act; title may be conveyed before patent is obtained: Dolph v. Barney, 5 Or. 191. Private parties cannot use the name of the state to try out a question of title between themselves on the pretense of annulling a patent: Wilson and Wakeman v. Shively, 10 Or. 267. Patent to tide-land, obtained by one fraudulently repre- senting himself the owner of abutting property, will be canceled in favor of the owner: Wilson v. Shiveley, 11 Or. 215. Certificate issued by the state to applicant for swamp- land conveys a present interest: Wattier v. Miller, 11 Or. 329. Courts will uphold a description approved by the execu- tive department of the United States, under the Quieting Title. 489 Public Lands (continued). Donation Act, though loose and soDnewhat indefinite: Shockley v. Brown, 1 W. T. 463. Ordinarily the issuance of patent is such final decision by the executive department respecting the title that courts will have jurisdiction, especially in favor of the party seeking to set it aside: Id. In action of ejectment, where plaintiff" clams under certifi- cate of purchase, defendant may show a certain state of facts by reason whereof the commissioner caused such certificate to be canceled: Hays v. Parker, 2 W. T. 198. The act, and not the patent, passes title to donation claimant; the latter merely evidences tiie title and re- lates back to the act: Brazee v. Schofield, 2 W. T. 209. Public Nuisances. See Nuisances. Public Policy. Sec Contracts. Public Use. See Dedication; Eminent Domain. Puget Sound. With its multitude of arms and inlets, is an arm of the sea: Smith v. United States, 1 W. T. 262. Admiralty jurisdiction of the United States extends over Puget Sound: Id. Quantum Meruit. See Assumpsit. Failure to complete contract to furnish work and mate- rials, for any reason except voluntary abandonment, does not preclude recovery of the reasonable value for the part done: Steeples v. Xewton, 7 Or. 110; Tribou v. Strowbridge, 7 Or. 156; Todd v. Huntington, 13 Or. 9. Demand not necessary to be proved in an action to re- cover reasonable value of attorney's services: Gibbs v. Davis, 11 Or. 288. Questions of Law and Fact. See Jury and Jury Trial. Quieting Title. See Cloud on Title. What suliicient possession to give right to impeach patent of United States: Starr v. Stark, 2 Or. 118. Possession of plaintiff" must be lawful to allow him to maintain suit under section 500 of tlie Code (sec. 504, Hill's A. L.): Tichenor v. Knapp, 6 Or. 205. Possession of one holding by deed alone, sufficient in case of wild lands under that section: Thompson v. Wolf, 8 Or. 454. 490 Quieting Title. Quieting Title (continued). In a suit under section 500 (sec. 504, Hill's A. L.), where the plaintiff attempts to show that the adverse claim amounts to a cloud, he must allege the facts showing the apparent validity, and the real invalidity of the in- strument clouding his title: Teal v. Collins, 9 Or. 89. In such suit, where the right claimed is equitable, and not legal, and plaintiff is out of possession, the objection that plaintiff has a remedy at law comes too late after answer to the merits: Kitcherside v. Myers, 10 Or. 21. Plaintiff must be in actual possession, under that section to maintain suit: Coolidge and McClaine v. Forward and Heneky, 11 Or. 118. The remedy under section 500 (sec. 504, Hill's A. L.) does not affect the chancery jurisdiction, outside of the statute, to remove cloud: Id. Equity will not try out a question of dry legal title where objection to jurisdiction is properly taken: Id. Adverse claim under section 500 (sec. 504, Hill's A. L.) need not amount to a cloud on title: Murphy v. Sears and Ilolman, 11 Or. 127. Quitclaim Deeds. See Deeds. Quo Warranto. Complaint in action to have oflQcer adjudged disquali- fied for having offered reward to voter must show that the promise was to benefit the voter: State -v. Church, 5 Or. 375. Circuit Court will entertain proceedings under section 354 of the Code (sec. 357, Hill's A. L.) to try the right to municipal office, notwithstanding a municipal board has been given by charter the right to judge of the election of its members: State v. McKinnon, 8 Or. 493. Private relator is not a party, and cannot control the pro- ceeding: State V. Douglas County Road Co., 30 Or. 198. District attorney has powers of attorney-general at com- mon law in the proceeding: Id. The substitute under the Code for quo warranto is identi- cal, except in form, with the common-law proceeding: Id. Private parties cannot use the name of the state to try out a question of title between themselves: Wilson and Wakeman v. Shively, 10 Or. 267. Railway Companies. 491 Quo Warranto (continued). Policeman ousted by action of mayor and common coun- cil of a city without cause may maintain quo ivarranto proceedings against one appointed to fill his place: Selby V. Portland, 14 Or. 243. The title of the office must be determined in his favor by some such proceeding, or he cannot sue for the salary subsequently accruing: Id. Information in the name of the territory is the proper . method of ousting a retired army officer unlawfully holding civil office under the laws of the territory: Hill V. Territory, 2 W. T. 147. Railway Companies. See Corporations; Dedication; Emi- nent Domain; Negligence. 1. As Corporations. 2. Construction. 3. Duties and Liabilities. 1. As Corporations. Are quasi public corporations; public have an interest in their location: Ilolladay v. Patterson, 5 Or. 177. Chattel mortgage made by president whose powers are con- fined to the ordinary business of the corporation under corporate seal is void, and no lien: Luse v. Isthmus Transit R'y Co., 6 Or. 125. Organized under Oregon statutes have no powers but such as are conferred by the statutes or necessarily inci- dental: Lakin v. R. Pt. Co., 13 Or. 436. In absence of statutory authority to lease the road, the duties and liabilities for torts by lessee are not removed from the owning corporation: Id. 2. Construction. Neither railroad nor adjoining owner is required bylaw to fence the line between them: Or. Central R. R. Co. v. ^ait, 3 Or. 91. Damages to owner of land taken: Id. Agent charged with selecting route cannot, for considera- tion moving to himself, agree on a particular route: Holladay v. Davis, 5 Or. 40. Subscription as donation in consideration of locating the route at certain place instead of adopting a sliorter sur- veyed route, void as against public policy: Ilolladay v. Patterson, 5 Or. 177. 492 Railway Companies. Railway Companies (continued). Legislative grant to a railroad company of use of a pre- viously dedicated public levee in a city, for terminal depots and docks, held a license: P. & W. V. R. R. Co. V. Portland, 14 Or. 188. Such license, saving the rights of the public by express terms, is not inconsistent with the original dedication for levee: Id. Where land was once condemned and paid for, and rail- road was built, but afterwards the company learned that another owned the property, in a second action to condemn, the owner is not entitled to put in evidence the value of the railroad improvements to enhance damages: 0. R. & N. Co. v. Hosier, 14 Or. 519. Railroad incorporated and organized under special act may proceed to condemn land under the general statute: Cascades R. R. Co. v. Sohns, 1 W. T. 557. 3. Duties and Liabilities. Not bound to stop train on seeing a man walking on the track; may presume he will get out of the way on sounding the alarm: Cogswell v. Or. & Cal. R. R. Co., 6 Or. 417. It is gross negligence for deaf person to walk on the track: Id. In action for value of horses killed, evidence of purchase price is not admissible: Holstine v. Or. & Cal. R. R. Co., 8 Or. 1G3. Slight negligence will not prevent recovery if negligence complained of was gross: Id. Question of negligence in brakeman putting his head out of the window of moving car should be left to the jury: Walsh v. Or. R'y & Nav. Co., 10 Or. 250. Company, having agreed to pay certain sunis in carriage of freight and passengers, selling the road and render- ing performance impossible, the sums are at once due in money: Branson v. Or. R'y Co., 10 Or. 278. Must f o construct and maintain ditches as not to overflow adjoining lands: Davidson v. Or. & Cal. R. R. Co., 11 Or. 13G. This duty is not lessened by lapse of time, or the fact that other persons turn water into the ditch: Id. Liability for ejecting a person from a train, evidence and damages: Sullivan v, Or. R'y & Nav. Co., 12 Or. 392. Rape. 493 Railway Companies (continued). Liability as common or private carriers: Iloneyman v. Or. etc. R. R. Co., 13 Or. 452. Complaint alleging liability as common carriers, no recov- ery can be had on proof as private carriers: Id. Company not holding out as carrier of dogs, but permit- ting its servant to take charge of dogs in transporting them, is liable at most as private and not as counuon carrier: Id. Lia])le for torts of lessees, where not authorized by statute to lease: Lakin v. R. R. Co., 13 Or. 43G. Construction company employed by owners, being in pos- session of the road and operating it for traffic purposes, owners are liable for negligence of such company occa- sioning death: Id. In an action by one injured while coupling a car loaded with projecting rails, held the facts showed want of care on his part, and no gross negligence on the part of the company, and motion for nonsuit should have been sustained: Scott v. Or. R'y & Nav. Co., 14 Or. 211. Employee continuing in his extra-hazardous employment knowing that the usual manner of the company in do- ing a particular business to be more hazardous than some other mode, assumes the risk: Id. Trainmen, knowing that at a particular place on the track persons are liable to be walking, are charged with an extra degree of watchfulness at such place: Cassida v. Or. R'y & Nav. Co., 14 Or. 551. Jury have a right to consider as a circumstance the fact that persons were accustomed for years prior to the time of the accident to walk upon the track at that place: Id. Same degree of prudence is not expected in children as in Adults: Id. Hence, evidence that the intestate, a child of seven years, being frightened by cattle, sought refuge on the railroad trestle to make her escape, is admissible to rebut charge of contributory negligence: Id. Rape. Prosecutrix, though a child, if called as a witness must be sworn: State v. Tom, 8 Or. 177. Declarations made at the time, or the fact that prosccu- 494 Rape. Rape (continued). trix made complaint, admissible, but not the particulars of what she then said: Id. Reasonable Doubt. See Criminal Law; Homicide. Receipts. See Evidence; Settlement. Receivers. Not appointed where danger of ultimate loss of partner- ship property is not shown: Wellman v. Harker, 3 Or. 253. In absence of statute regulating fees of, court appointing may allow reasonable compensation: Martin v. Martin, 14 Or. 165. Order allowing fees is a final order, from which appeal lies: Id. Recorder. See Jurisdiction; Justice of the Peace. Recording. See Chattel Mortgages; Deeds; Husband and Wife; Liens; Mortgages; Notice. Records. See Appeal and Error; County Courts; Evidence; Judgments and Decrees; Judgment Roll; Jurisdiction; Practice. Authentication of record from any state must show judge certifying is presiding judge, or the only judge, of his court: Pratt v. King, 1 Or. 49. But when the record is silent, and it does not appear that there are other judges, it is presumed there is but one judge: Keyes v. Mooney, 13 Or. 179. The official character of the judge must appear from his certificate: Pratt v. King, 1 Or. 49. Entry by judge in his docket, to the effect that a certain demurrer was overruled, is no part of the record: Willa- mette Falls etc. Co. v. Smith, 1 Or. 181. Court may amend during term to make the record conform to the facts: Howell v. State, 1 Or. 241. When judgment is rendered, the record should show un- equivocally what was adjudicated: Dray v. Crich, 3 Or. 298. » How far the record is conclusive of jurisdiction; recitals; evidence in aid of, or to dispute: Ileatherly v. Hadley and Owen, 4 Or. 1 ; Tustin v. Gaunt, 4 Or. 305. Under the Code, record includes all papers and proceed- ings contained in judgment roll; Tustin v. Gaunt, 4 Or. 305. Records. 495 Records (continued). Erasures in a record used to contradict certified copy, erasures must be explained: Dolph v. Barney, 5 Or. 192. Failure of officer of inferior tribunal to record proceedings remedied by proceedings to complete the record; super- visory control of Circuit Court: Road Co. v. Douglas County, 5 Or. 373. The right to nunc pro tunc order to correct the record: Road Co. V. Douglas County, 5 Or. 40G; Tompkins v. Clackamas County, 11 Or. 364; Carter, Rice, & Co. v. Koshland, 12 Or. 492; Lee v. Imbrie, 13 Or. 510; Hays V. Miller, 1 W. T. 143; Hale v. Finch, 1 W. T. 517. Index is no part of the records of deeds; deed recorded and not indexed operates as notice: Board of Com. v. Babcock, 5 Or. 472. Record of contract of County Court, duly attested, how far conclusive: Road Co. v. Douglas County, 6 Or. 299. Attorney cannot change legal effect of a notice of appeal on file by adding proof of service: Briney v. Starr, 6 Or. 207. Contract by County Court, though not in the form of an order, is entitled to record in the journal: Road Co. v. Douglas Co., 6 Or. 299. The whole record, and not the petition alone, will be ex- amined in ascertaining whether a Probate Court has jurisdiction to admit a will to probate: Moore v. Wil- lamette T. & L. Co., 7 Or. 359. A petition found with the record, and apparently acted upon by the court, is deemed to have been filed unless the contrary appear, though not marked "filed": Id. Cannot be impeached by affidavits showing recital of ap- pearance, and answering to be untrue: Cauthorn v. —King, 8 Or. 138. Discretionary with court to change record showing ar- raignment of prisoner when conflicting affidavits as to its correctness are filed: State v. Lee Ping Bow, 10 Or. 27. Certificate of officer, to a copy of judgment record of another state, need not contain statement that he com- pared the copies with the original: Bloomfield v. Hu- mason, 11 Or. 229. 496 Records. Records (continued). A manifest clerical error in date in authentication should be disregarded: Keyes v. Mooney, 13 Or. 179. Report of referee is no part of judgment roll, and cannot be considered on appeal in an action at law: Osborn v. Graves, 11 Or. 526. Recoupments. See Set-offs and Counterclaims. Recoupment of damages for breach of warranty of an engine, in an action for the price: Drake v. Sears, 8 Or. 209. Partial failure of consideration may be set up as a defense to an action on a bill of exchange, and the defendant recoup his damages, though unliquidated: Davis v. Wait, 12 Or. 425. Redemption. See Executions, and Proceedings Supple- mental; Mortgages; Taxation. Reference. See Arbitration and Award. Judgment on award void if report is made by the referees after their authority expires: Hanner, Jennings, & Co. v. Coffin, 1 Or. 99. Trials before referee proceed in same manner as to order of proof as in trial before court: Stimson v. Estes, 3 Or. 521. Referee has same authority as court in directing trial, and deciding incidental questions: Id.; Bohlman v. Coffin and Carter, 4 Or. 313. A copy made and certified to by him will be sufficient, instead of the original offered in evidence: Id. In an action at law involving the examination of long ac- counts, court may refer without the consent of the par- ties: Tribou v. Strowbridge, 7 Or. 156. Section 219 of the Code (sec. 222, Hill's A. L.), giving the court such power, is not in violation of the right to jury trial: Id. Court may order a reference in order to ascertain the amounts of rents and profits collected by a mortgagee in possession: Renshaw v. Taylor, 7 Or. 315. Referee, for an accounting between partners, should ascer- tain what the profits were, not what they should have been: Boire v. McGinn, 8 Or. 466. Findings by referees in equity cases stand as a verdict, and will not be reversed unless clearly against the "weight of evidence: Fahie v. Lindsay, 8 Or. 474; over- ruled, O'Leary v. Fargher, 11 Or. 225. Rehearing. 497 Reference (continued). Nor reviewed by the Supreme Court, where objections were not made below: State v. Grover, Chad wick, & Fleischner, 10 Or. 66. Findings will not be reviewed in action at law unless there was no evidence to sustain them: WiUiams v. Gallick, 11 Or. 337. Failure to find on immaterial issue of fraud is not error: Id. Report of a referee is no part of the judgment roll, and cannot be considered on appeal in an action at law: Osborn v. Graves, 11 Or. 526. A referee to take testimony is appointed only to take the oral proofs in the case: Baker v. Woodward, 12 Or. 3. Written documents, especially when proved by being au- thenticated as provided by statute, may be put in evi- dence at the hearing: Id. Eeformation of Instruments. See Mistake and Acci- dent. Testimony must be clear and conclusive to warrant re- lief: Newsom v. Greenwood, 4 Or. 119; Lewis v. Lewis, 4 Or. 177; Stephens v. Murton, 6 Or. 193. What complaint must show in suit to reform deed on the ground of mistake: Lewis v. Lewis, 5 Or. 169; Ramsey V. Loomis, 6 Or. 367. Court will make a valid contract operate, but cannot make a void contract good: Evarts v. Steger, 6 Or. 55. Administrator's bond failing to express penal sum can- not be reformed : Id. Where complaint alleges mistake, and not fraud, reforma- tion will not be granted for fraud: Stephens v. ISIurton, 6 Or. 193. But where the complaint is ambiguous in this respect, the relief will be granted if the objection was not taken at the proper time, but was waived by answering: Bal- dock V. Johnson, 14 Or. 542. Complaint must show what the true terms of the contract are, and the mistake: Stephens v. Murton, 6 Or. 193. Register and Receiver. See Public Lands. Registering. See Chattel Mortgages; Deeds; Elections; Husband and Wife; Liens; Mortgages; Notice. Rehearing. See Appeal and Error. Or. Dig.— 32 498 Removal of Causes. Eemoval of Causes. Order partially removing a cause to the United States court on ground of citizenship of part of defendants is not reviewable in Supreme Court: Fields v. Lamb, 2 Or. 340. Such order does not affect a substantial right or prevent a judgment or decree within section 525 of the Code (sec. 535, Hill's A. L.): Id. Act of Congress, March 2, 1867, does not repeal act of July 27, 1866, so as to deprive Circuit Court of right to make such order: Id. Rents and Profits. See Landlord and Tenant; Mesne Profits. Repeal of Statutes. See Statutes. Replevin. Costs where plaintiflP recovers part of property only cannot be divided: McDonald v. Evans, 3 Or. 474. Action under the Code is substantially replevin, and is governed by same principles in demand or refusal: Moscr V. Jenkins, 5 Or. 447. Affidavit for immediate delivery is no part of pleadings: Id. Defendant may plead property in himself or another in bar, and if he recovers judgment, is entitled to a return: Spores v. Boggs, 6 Or. 122. The plaintiff must recover on the strength of his own title, and not the weakness of that of the defendant: Id. Oflficer cannot justify under levy on personalty in the hands of third person: Spaulding v. Kennedy, 6 Or. 208. If wrongful taking is proved, plaintiff is entitled no nom- inal damages at least: Id. Pledgee of personal property cannot deliver possession on satisfaction of his claim to any one but his pledgor, and a stranger cannot recover possession from him: Dean V. Lawham, 7 Or. 422. Verdict for damages, without finding ownership or value will not sustain judgment: Jones v. Snider, 8 Or. 127. General verdict is not presumed to include special issues, necessary to be passed on where the statute requires special findings thereon: Id. What is sufficient complaint in action on undertaking in replevin: Cooper v. McGrew, 8 Or. 327; Boyer v. Fowler, 1 W. T. 101; Meigs v. Keach, 1 W. T. 305. Replevin. 499 Replevin (continued). Replevin docs not lie against officer for goods levied upon, after verdict of sheriff's jury thereon against the claim- ant: Remdall v. Swackhamer, 8 Or. 502; Capital Lum- bering Co. v. Hall, 9 Or. 93; Ilexter v. Schneider, 14 Or. 184. If, after delivery to plaintiff, he fails to prosecute his action, defendant is entitled to dismissal with costs; but must prove his right to the property or its value, if he demands judgment for return thereof: Capital Lumbering Co. v. Hall, 10 Or. 202. To entitle defendant to a return or the value, the answer and proof must show his right atTirmatively: Id. Action may be maintained for the recovery of property exempt, and duly claimed as such, notwithstanding it has been ordered sold under section 155 of the Code (sec. 157, Hill's A. L.), in an attachment suit: Berry V. Charlton, 10 Or. 362. The fact that defendant took possession without fraud or intention to do wrong does not make the taking lawful: Surles V. Sweeney, 11 Or. 21. Demand is not necessary where the taking was wrongful, although the property has since been transferred to a bona fide purchaser: Id.; Ilexter v. Schneider, 14 Or. 184; Moorhouse v. Donaca, 14 Or. 430. Description of goods in complaint and judgment must be reasonably certain: Foredicc v. Rinehart, 11 Or. 208; Prescott V. Pleilner, 13 Or. 200; Guille v. Wong Fook, 13 Or. 577. " Sixteen and two fifteenths barrels of flour, the property described in the complaint," suflicient identification of the property in the judgment: Id. Where no immediate delivery is had in the action, and the defendant keeps possession, he cannot object to the sufficiency of the description in the complaint: Id. Affidavit is the foundation of jurisdiction of order for immediate delivery: Carlon v. Dixon, 12 Or. 144. Though the directions to the officer are indorsed on the aflidavit by the plaintiff instead of the justice of the peace, the sureties are liable on the bond: Id. Failure to allege the place from which the property was taken is cured by verdict: Kirk v. Matlock, 12 Or. 319; Moorhouse v. Donaca, 14 Or. 430. 500 Replevin. Replevin (continued). Justice has jurisdiction irrespective of where the cause of action arose if the other jurisdictional facts exist: Id. Description and valuation in complaint of mare and her colt together is sufficiently certain: Prescott v. Heilner, 13 Or. 200. Verdict in favor of party having possession need not assess value: Id. In such case a finding that he is "entitled to the return thereof" would be out of place: Id. Verdict failing to find as to damages for detention is not defective; presumed that jury found no damage: Id. Defendant must plead special property in himself as a defense, and cannot prove it under the general issue: Guille V. Wong Fook, 13 Or. 577. Semhle, that the defendant can prove absolute ownership in himself or another, under the general issue: Id. Verdict and judgment must identify the property with certainty: Id. " Forty-nine of the hogs described in the complaint," the complaint describing sixty-eight generally, is too in- definite in verdict and judgment: Id. Claim by the defendant upon demand made that the property is his is inconsistent with and a waiver of a claim of a lien thereon: Id. No demand necessary before suit to recover, from pur- chaser under execution sale, goods seized on attachment as the property of a third person, but which belong to plaintiff": Ilexter v. Schneider, 14 Or. 184. Verdict of sheriff^'s jury on the question of ownership will protect the officer, but does not conclude the claimant from bringing replevin against the purchaser: Id. Sureties on replevin bond are liable for costs and for in- terest by way of damages for the breach, when judg- ment goes against plaintiff": Carlon v. Dixon, 14 Or. 293. Such liability is limited to the penalty expressed in the bond: Id. The action is local, and a complaint which only alleges wrongful taking in the county where the action is brought is bad on demurrer: Moorhouse v. Donaca, 14 Or. 430. Res Judicata. 501 Replevin (continued). But in the absence of demurrer, such complaint will sus- tain evidence of the situs of the property at the time the action was commenced: Id. Where the answer admits a joint taking and detention by the defendants, it is not error to refuse to instruct that no case has been established against one of them: Id. Error in date in instruction held immaterial; where the plaintiff owned the property a few days before com- mencement of action, presumption is that he owned it at that date: Id. Replevin bond is for the especial purpose of indemnifying the obligee or his assignee, against the damages ad- judged in the trial in the particular suit in which it is given: Boyer v. Fowler, 1 W. T. 101. The old rule of trying the issue of damages on replevin bond stated: Id. The suit in which the bond was given having been dis- missed, there was no judgment in fjivor of the obligee, and she is concluded from maintaining action on the bond: Id.; contra, Meigs v. Keach, 1 W. T. 305. Plaintiff to recover in replevin must have had actual pos- session or the right of reducing the property to pos- session, at the time of the unlawful taking: Sires v. Newton, 1 W. T. 356. Venue is jurisdictional; complaint must allege the prop- erty was in the county at the commencement of the action: Stiles v. James, 2 W. T. 194. But where the sheriff's return on file in the cause shows the property is within the court's jurisdiction, the omis- sion in the pleading is corrected: Id. Representations. See Fraud and Deceit; Insurance. Reputation. See Evidence. Res Gestae. See Evidence. Residence. See Domicile; Elections; Public Lands. Res Judicata. See Executions, and Proceedings Supple- mental; Stare Decisis. Suit on a bond for a deed is not a bar to suit for specific performance, the parties and property affected being •the same, but the subject-matter difi'erent: Knott v. Stephens, 5 Or. 235. On issue of former adjudication, where the record shows 502 Res Judicata. Res Judicata (continued). that the pending cause was in issue in the former suit, jurors in such suit cannot testify otherwise: Underwood V. French, 6 Or. G6. A matter cannot be said to have been adjudicated in for- mer action which was not in issue therein: Hill v. Cooper, 6 Or. 181. Not only all questions actually litigated, but all within the issue, are concluded: Barrett v. Failing, 8 Or. 152; Neil V. Tolman, 12 Or. 289. Parol evidence is not admissible to show that certain is- sues were withdrawn, and not litigated in former suit: Id. When County Court makes an order in probate, it is con- clusive unless appealed from: Winkle v. Winkle, 8 Or. 193. Judgment in ejectment is conclusive as between the par- ties as to legal title and right of possession: Hill v. Cooper, 8 Or. 254. Judgment in default has the same effect (by estoppel) as judgment after verdict: Neil v. Tolman, 12 Or. 289. Water rights settled by decree for want of an answer can- not again be litigated between the parties: Id. Where the record shows that the court in the former case did not consider the merits of the case, but dismissed the same without trial or evidence, such judgment is merely a nonsuit, and plea of former adjudication can- not be based thereon: Hughes v. Walker, 14 Or. 481. The matter adjudicated, to be a bar, must be a fact in issue by the pleadings, as distinguished from a fact in controversy: Glenn v. Savage, 14 Or. 567. A question in issue by the pleadings, though withdrawn from the consideration of the jury, cannot be again the subject of suit: Id. A losing party cannot be allowed to try his cause over again in a counter-suit, for the reason that he was not prepared to meet his adversary upon the trial of the first suit: Kellogg v. Haddocks, 2 W. T. 407. Restraint of Trade. See Contracts. Resulting Trusts. See Trusts and Trustees. Return. See Appeal and Elrror; Habeas Corpus; Summons. Revenue. See Taxation. Review, Writ of. 503 Review, Bills of. See Equity. Review^, Writ of. Certiorari and appeal are concurrent remedies from Justice and County Courts: Blanchard v. Bennett, 1 Or. 328; Schirott V. Phillippi, 3 Or. 484; contra, Evans v. Chris- tian, 4 Or. 375; Sellers v. Corvallis, 5 Or. 273; Ramsey V. Pettengill, 14 Or. 207; Summers v. Harrington, 14 Or. 480. Reasonable time will be allowed by the Circuit Court to bring up proceeding by certiorari: Thompson v. Mult- • noniah Co., 2 Or. 34. Lies to County Court to bring up its proceedings in lay- ing out highway: Id.; C. & G. Road Co. v. Douglas County, 5 Or. 280. Lies to review judicial, and not ministerial, acts: Id.; Burnett v. Douglas County, 4 Or. 388. Lies to review decisions of assessor and clerk as a board of equalization: Rhea v. Umatilla County, 2 Or. 298; Popplcton v. Yamhill County, 8 Or. 337. But must be exercised within six months after their refusal to reduce the complainants' tax: Id. Review allowed as auxiliary to habeas corpus; practice: Fleming v. Bills, 3 Or. 286. Appeal involves trial of fact and law; review questions of law only: Schirott v. Phillippi, 3 Or. 484. After expiration of time to appeal, right to review sur- vives: Id.; Evans v. Christian, 4 Or. 375; Sellers v. Corvallis, 5 Or. 273; contra, Ramsey v. Pettengill, 14 Or. 207; Summers v. Harrington, 14 Or. 480. And overruled so far as it applies to County Court: Bro- back V. Huff, 11 Or. 395. Return to writ is part of the judgment roll, and a bill of exceptions containing same unnecessary: Johns v. 3Iarion Co., 4 Or. 4G. Return must show affirmatively that jurisdiction was acquired: Id. Jurisdictional irregularities cannot be disregarded as not affecting a substantial right: Id. Where the granting of the writ involves matter of public •interest it is discretionary: Burnett v. Douglas County, 4 Or. 388. Order of County Court to proper officers to receive and 504 Review, Writ of. Review, Writ of (continued). cancel certain warrants is not judicial or subject to review: Id. Review brings up the record, not the evidence: C. & G, Road Co. V. Douglas County, 5 Or. 280; Road Co. v. Douglas County, 6 Or. 299; Poppleton v. Yamhill County, 8 Or. 337. Lies only when the party seeking the writ has been con- cluded by the determination: Id. Proper remedy to require County Court to complete its record, and not injunction: Road Co. v. Douglas County, 5 Or. 373. When and in what manner the facts may be brought up to the court for review; what is the record? Road Co. V. Douglas County, 5 Or. 406; Harper v. Harding, 3 Or. 861. Affidavits in support of application for nunc pro tunc order, part of record: Id. Only remedy from justice's judgment after striking out answer, defendant refusing to further plead: Long v. Sharp, 5 Or. 438. Does not lie to County Court for exercise of discretion in fixing and allowing reasonable fees for services, where not fixed by law: Cook v. Multnomah County, 8 Or. 170. But where, in such case, it exercises its jurisdiction erro- neously, or exceeds its jurisdiction, review lies: Pruden V. Grant Co., 12 Or. 308. Does not lie to board of school land commissions to review its decisions: Corpe v. Brooks, 8 Or. 222. Findings of fact of inferior tribunal will not be disturbed unless manifestly wrong: Poj^pleton v. Yamhill County, 8 Or. 337. Docket of justice not showing that defendant was given an hour to appear, judgment in default reversed on re- view: Gaunt V. Perkins, 8 Or. 354. Lies to County Court to correct errors of in county busi- ness; appeal is not proper remedy: Mountain v. Mult- nomah County, 8 Or. 470. So review lies to the County Court to review its proceed- ings where it refuses to perform a duty prescribed by law in auditing, allowing, and paying the expenses of a milita company for its armory: Id. Rewards. 505 Review, "Writ of (continued). Proper remedy from judgment of recorder of La Fayette rendered in city case: Town of La Fayette v. Clark, 9 Or. 225. Common council of Portland being by charter the final judge of the election of its members, on review errors of fact or law in counting the votes cannot be retried: Simon v. Portland Common Council, 9 Or. 437. Does not lie to County Court in the matter of auditing and allowing claims, except where such duties are in- vested with judicial character: Crossen v. Wasco Co., 10 Or. 111. Proper judgment in Circuit Court on review of justice's judgment is to direct the justice to proceed in the matter reviewed according to the decision of the Cir- cuit Court: Crowley v. State, 11 Or. 512. Appeal and review are concurrent remedies to review a void judgment in default: Prickett v. Cleek, 13 Or. 415. Where a policeman is ousted without cause by mayor and council, and another is put in his place, quaere whether review will not lie: Selb}'- v. Portland, 14 Or. 243. County is necessary party defendant in proceedings to re- view action of county commissioners refusing license to sell liquors: Wood v. Riddle, 14 Or. 254. Review is not a remedy adapted to the litigation of dis- puted claims against a county: Vincent v. Umatilla Co., 14 Or. 375. Upon review in such case all the facts and requirements of law to the creation of a valid claim against the county should appear affirmatively: Id. And this rule is more strictly applied where the proceed- ings in the County Court were ex parte: Id. So, the allowance of claims for militia companies being ''discretionary with the County Court, it must appear that due application and compliance with the law has been made: Id. Revival of Judgments. See Judgments and Decrees. Rewards. Finder of lost property not entitled to reward unless there be promise of reward by owner: Watts v. Ward, 1 Or. 86. Complaint in action to try title to ofhce, and to have oliicer adjudged disqualified for having offered reward 506 Rewards. Rewards (continued). to voters, must show the promise to be to benefit voter: State V. Church, 5 Or. 375. Promise by candidate to pay into county treasury part of his salary is not such offer as to disqualify unless shown to benefit those to whom offered: Id. Knowledge on the part of the defendants of the publica- tion of an off'er of reward over their signature, but with- out their authority, is not sufficient by mere silence, without fraud, to estop them from denying that they ofiered the reward: Hugil v. Kinney, 9 Or. 250. Printed advertisement of off'er of reward by carrier is ad- missible evidence as an admission of liability for loss of money package: Bennett v. N. P. Ex. Co., 12 Or. 49. Right of Way. See Easements; Eminent Domain. Riot. What constitutes an unlawful assemblage under the statute: Newby v. Territory, 1 Or. 164. Form and contents of indictment and verdict: State v. Tom Louey and Loo Wan, 11 Or. 326. Riparian Owners. See Ferries; Water and Watercourses. Roads. See Highways. Road Supervisors. Are agents of county; liability of county for their neglect to repair bridges: McCalla v. Multnomah Co., 3 Or. 424; Heilner v. Union Co., 7 Or. 83. Are sole judges of the necessity for taking road materials from lands near the road for purpose of repairing the road: Kendall v. Post, 8 Or. 141. Equity will not interfere so long as they do not oppress, in the discharge of such duties: Id. The owner must apply to the County Court for recompense for the injury he suffers by reason of road materials having been taken from his land: Id. Cannot maintain suit to enjoin a person illegally collect- ing and appropriating road taxes: Pettyjohn v. Par- montcr, 10 Or. 341. Robbery. In the contemplation of the law, robbery is not completed until the taking and carrying away are ended, where the removal is continuous and uninterrupted: State v. Brown, 7 Or. 186. Rules of Court. 507 Rules of Court. Rules of the Oregon Supreme Court: 1 Or. 11; 1 Or. 331; 2 Or. 15; 3 Or. 14; 4 Or. viii.; G Or. vii.; 9 Or. 35; 12 Or. 533. Rules of United States District Court for district of Oregon: 1 Or. 373. After appeal in criminal case, statement of errors relied on must be given on demand: State v. Ellis, 3 Or. 497. Every court has power to establish reasonable rules for conduct of business: Carney v. Barrett, 4 Or. 171; Coyote G. & S. M. Co. V. Ruble, 9 Or. 121. Rule requiring instructions requested to be presented in writing before last address of counsel to jury, held reasonable: Id. Rules promulgated, not repugnant to law, are equally bind- ing on court and litigants: Coyote G. & S. M. Co. v. Ruble, 9 Or. 121. Court has no discretion to set aside a rule in a particular case, unless authorized by the rule itself: Id. Petition for rehearing filed after time fixed by rule cannot be heard: Id. Conceding that Supreme Court of Washington Territory has power to make rules governing it on appeals in ad- miralty cases, it has not done so, nor has the Supreme Court of the United States made such rules for it: Nickels v. Griffin, 1 W. T. 374. Manner of taking appeal was, under Code of 1871, pre- scribed by the rules of the territorial Supreme Court: Garrison v. Cheeney, 1 W. T. 489. These rules and the practice thereunder was changed by the Code of 1873: Id. Under Code of 1871, actions at law were regulated by the Code, while all pleadings and proceedings in chancery -cases were to be as prescribed by the laws of the United States and the rules of the United States Supreme Court: Id. Publication of summons in equity cases as governed by the rules of the Supreme Court of the United States: Id. Rules of court are part of the record of every cause tried 'therein, but cannot be considered on appeal, unless properly certified as a part of the record in the cause: W. W. P. & P. Co. V. Budd, 2 W. T. 336. 508 Rules of Court. Rules of Court (continued). Whether District Court can, by its rules, make the ser- vice on the opposite party, of a demurrer filed with the clerk, essential to an appearance, in view of section 72 of the Code of 1881: Id. Appeal dismissed because brief of appellant was not filed within the time prescribed by rule of the Supreme Court: Lewis v. Host, 2 W. T. 402. Salary. See Bribery; Compensation; County Judge; Fees; Offices and Officers; Police Judge; Secretary of State. Sales. See Administrators and Executors; Complaints; Con- tracts; Damages; Executions, and Proceedings Supple- mental; Fraud and Deceit; Liens; Specific Perform- ance; Statute of Frauds; Tender; Trusts and Trustees. 1. The Contract of Sale. 2. Delivery. 3. Validity. 4. Warranty. 5. Rights and Remedies. 1. The Contract of Sale. A contract of sale where title is not to pass until selection is made is not a bill of sale: Lownsdale v. Ilunsaker, 2 Or. 101. Merc agreement to sell land does not constitute license to purchaser to enter: Lee v. Summers, 2 Or. 260. Delivery under written agreement to pay rent in install- ments, until the full price is so paid, and title in the mean time to remain in vendor, is not a sale: Singer Mfg. Co. V. Graham, 8 Or. 17; Rosendorf v. Hirsch- berg, 8 Or. 240. Bona fide purchaser from the bailee does not acquire title as against owner: Id. Vendee takes, in such case, merely a right by implication to use until he makes default: Rosendorf v. Ilirschberg, 8 Or. 240. An implied condition that the property is in existence is a part of the contract of sale: Powell v. D. S. & G. P. R. R. Co., 12 Or. 488. If the property has ceased to exist when the time for per- formance arrives, each party is discharged from the contract: Id. Contract to pass title to a chattel after payment of price Sales. • 509 Sales (continued). is regarded as if it read upon such payment: Ilawley, Dodd, & Co. V. Kenoyer, 1 W. T. GOO. Such contract contains two mutual interdependent prom- ises, the one being in consideration of the other, and conditional upon its performance: Id. 2. Deliveuy. Sale unaccompanied by delivery is void at common law against attaching creditors: Monroe v. Ilusscy and Bur- bank, 1 Or. 188. Sale without delivery, when a future selection and deliv- ery is contemplated, gives vendee no right to take pos- session without consent of vendor; his action is for breach of contract: Lownsdale v. Ilunsaker, 2 Or. 101. Delivery of sheep under contract; question for the jury, where they were not counted out: Southwell v. Breez- ley, 5 Or. 143; S. C, 5 Or. 458. The question of fraud on the sale of chattels where vendor retains possession should be left to the jury; the pre- sumption is disputable: McCully v. Swackhamer, 6 Or. 438. Vendor need not remove heavy machinery from his shop to depot, to deliver it, when vendee is not there with cars as agreed, to receive it; Smith Bros. v. Wheeler, 7 Or. 49. Actual delivery is not necessary in such case before action for the price: Id. Sale of standing timber, to be delivered in logs at vendee's mill, the possession and right of property remain in the vendor until delivery: Dean v. Lawham, 7 Or. 422. The pledgee of the vendor, holding possession to secure the price of his labor on the logs, has a right to the posses- sion as against the vendee: Id. Huch pledgee is bound to deliver the logs to the vendor, from whom he received them, on the satisfaction of his claim: Id. Sale of land does not pass title to cord wood cut and piled thereon by vendor: Schmidt v. Vogt, 8 Or. 344. Jf goods are sold by number, weight, or measure, the sale incomplete, and risk is with the vendor until separa- tion: Ilubler V. Gaston and Furry, 9 Or. GO. Quantity of oats sold, to be sacked and delivered, but 510 • Sales. Sales (continued). which were not separated or identified at the time of sale, remain the property of and at the risk of the ven- dor: Id. 3. Validity. Validity of sale a question for jury, in action against sheriff for not levying on personalty in the possession of debtor, claimed by him to have been sold to a third party: I\Ioore v. Floyd, 4 Or. 101. Sale of personal property of greater value than fifty dol- lars is void unless the written agreement or memoran- dum express the consideration: Corbitt v. Salem Gas- light Co., 6 Or. 405. Fraud invalidating a sale of chattels left in possession of vendor is a question for the jury: McCully v. Swack- hamer, 6 Or. 438. The retention of possession of personalty by the vendor after sale creates a disputable presumption of fraud: Id. Where there is no fiduciary relation, it is not usually in- cumbent on the vendee, on purchasing, to disclose facts within his knowledge of advantage to vendor: Caples v. Steel, 7 Or. 491; Savage v. Savage, 12 Or. 459. Vendee need not disclose his knowledge of a mine on land which he purchases, but his willful misstatement will render the sale voidable: Id. Purchase of land by attorney in fact from his distant principal, without disclosing a better off"er previously received, will be set aside on repayment of purchase- money: Savage v. Savage, 12 Or. 459. Sale by executor, without authority, may be ratified and rendered valid by the Probate Court, if deemed of ad- vantage to the estate: Brewster v. Baxter, 2 W. T. 135. So any one interested in the estate may ratify the same to the extent of his interest: Id. Demand by such interested person, with knowledge of the facts, made upon the vendee for an accounting of the proceeds of such sale, is a ratification: Id. 4. Wauranty. Price paid is the measure of damages for breach of war- ranty of title: Arthur v. Moss, 1 Or. 193. Measure of damages for breach of warranty on sale of engine: Drake v. Scars, 8 Or. 209. Sales. 511 Sales (continued). Where answer denied express warranty that hops sold were grown by defendants, and averred their soundness at time of delivery, plaintiff must prove sale by sample and inferiority of the bulk to the sample, or fraud, or express warranty of quality: Schraieg v. Wold, 1 W. T. 472. Sale of chattels in possession of vendor is a warranty of title, which extends to encumbrances: Baker and Ham- ilton V. McAllister, 2 W. T. 48. 5. Rights and Remedies. Complaint must allege promise to pay for goods sold, and show that payment is due: Bowen v. Emmerson, 3 Or 452. Equity will entertain jurisdiction in case of fraudulent sale, where deceit is alleged, although an action for de- ceit would lie: Smith v. Griswold, 6 Or. 440. Where goods are sold on credit, the vendee to furnish secured notes in payment, and he fails to do so, action lies to recover the price before the term of credit ex- pires: Wheeler v. Harrah, 14 Or. 325. Where contract within the statute of frauds contains two mutual promises, and is signed by the party suing on it only, the other party may successfully interpose the defense of the statute: Hawley, Dodd, & Co. v Kcn- oyer, 1 W. T. 609. Vendee, on discovering breach of warranty of title of the chattels, may rescind by tendering back the property, and set up the breach of the contract against an action for the price: Baker and Hamilton v. McAllister, 2 W T 48. On breach by vendee of executory contract for sale of real estate, vendor may treat the contract as equitable mort- ^gage and foreclose, or may tender deed and sue for pur- chase price: Wood v. Mastick, 2 W. T. G4. Vendee of land in possession must tender reconveyance, or offer to surrender possession, or he cannot defend on the ground that vendor had agreed to execute further deed, and had failed in the condition: Kenworthy v Merritt, 2 W. T. 155. Vendor fraudulently selling lots of little value, at same time showing vendee lots of great value, and by fraud 512 Sales. Sales (continued). pursuading him to believe them the lots sold, is liable in an action of deceit for the difference in value: Phin- ney v. Hubbard, 2 W. T. 369. Salmon. See Game Laws. Satisfaction. See Executions, and Proceedings Supplemen- tal; Judgments and Decrees; Mortgages. Schools. See Public Lands; University. 1. School Districts. 2. School Tax and School Fund. 3. Officers. 1. School Districts. Are public corporations, and consent of governor neces- sary before suit to annul their existence: State v. Hulin, 2 Or. 306. Claims should be presented to the directors before suing the district thereon: Stackpole v. School District No. 5, 9 Or. 508. In the absence of express statutory provision, mechanic's lien cannot attach to a school building: Lumbering etc. Co. V. School District, 13 Or. 283. 2. School Tax and School Fund. Clerk may pay outstanding warrants in the order of their presentation: Howard v. Bamford, 3 Or. 565. Not necessary to apply the money of each year exclu- sively to pay for school during such year: Id. Remedy when clerk has funds and refuses to pay a claim is by mandamus: Id. Compensation of member of the board of commissioners out of school fund under the act of 1864: Fleischner v. Chadwick, 5 Or. 152. Act of 1865, providing for loaning school funds, is consti- tutional: Kubli V. Martin, 5 Or. 436. Indebtedness may be deducted from assessments for school purposes: Stephens v. School District No. 21, 6 Or. 353. School clerk in making assessments must follow the gen- eral law governing assessors: Id. Act of 1876, as to collecting school taxes, repeals subdi- vision 2, section 37, chapter 4, Miscellaneous Laws: Stingle v. Nevel, 9 Or. 62. Secretary of State. 513 Schools (continued). The act of 1878, upon the same subject, does not repeal said act of 187G: Id. 3. Officers. Court takes judicial notice of a superintendent's power to convey school land to private person: Dolph v. Barney, 5 Or. 192. His deed, if regular on its face, is prima facie evidence of his power to convey: Id. Scire Facias. See Judgments and Decrees. Seals. Of private corporation need be in no particular form: Eagle Woolen Mills Co. v. Monteith, 2 Or. 277. Iowa statute concerning seals of private person to sealed instruments was adopted in 1844 in Oregon: Wilson v. McEwan, 7 Or. 87. Any device or scrawl affixed by way of a seal is sufficient under that statute: Id. Of corporation, with the corporate name thereon, affixed by officers, with their names on a note, imports an in- tention to bind the company: Gutlirie v. Imbrie, 12 Or. 182. Private seal of probate judge adopted as the seal of the court is entitled to full credit as such: Ward v. Moorey, 1 W. T. 104. Seat of Government. Legislature, in enacting that seat of government shall be and remain at Vancouver, exceeded its powers under the Organic Act to "change" the same: Seat of Gov- ernment Case, 1 W. T. 115. Said act is made contingent by act of same session, sub- mitting to the people a vote as to their choice for place for the seat of government: Id. Secretly of State. Authority to draw warrant depends on appropriation by legislature: Brown v. Fleischner, 4 Or. 132. Decisions of, in allowing claims against the state, are not judicial in their nature or effect: State v. Brown, 10 Or. 215. Such decisions are not conclusive on the parties in collat- eral proceedings: Id. Allowance of claim by, does not constitute account stated, Oe. Dio.— 33 514 Secretary of State. Secretary of State (continued). and state is not bound by the determination in action to recover money unlawfully allowed on such account: Id. Acting as governor, during interim, is entitled to the sal- ary as such, though drawing salary as secretary: diad- wick V. Earhart, 11 Or. 389. Continues to perform duties of governor until successor is elected, although his oflS.ce as secretary has expired in the mean time: Id. Seduction. Good character of plaintiff and defendant's family may be shown by the plaintiff: Parker v. Monteith, 7 Or. 277. Evidence of the flight of the defendant when charged with the seduction is admissible: Id. Plaintiff may prove the seduction was accomplished under promise of marriage: Id. Allegation that " one F. P., the daughter of the plaintiflF," etc., sufficiently alleges that she is the daughter: Id. So allegation that daughter is sixteen years of age suffi- ciently alleges that she is under twenty-one: Lee v. Coolcy, 13 Or. 433. Letter from plaintiflF's daughter to defendant, delivered by the plaintiff, and oral reply then made by defend- ant, are admissible in behalf of plaintiflF on the footing of conversations between the parties: Id. Statute giving woman right of action for her own seduc- tion applies only where both are not equally guilty: Breon v. Ilenkle, 14 Or. 494. PlaintiflF in such case cannot recover unless defendant employed such artifice and deceit as is calculated to mislead a virtuous woman: Id. Self-defense. See Criminal Law; Homicide. Sentence. See Criminal Law. Separate Estate. See Husband and Wife. Service of Process. See Appeal and Error; Summons. Services. See Compensation; Lien; Wages. Servitudes. See Easements. Set-offs and Counterclaims. Sec Divorce; Equity. Set-oflF of amount admitted by pleadings in former action: Kafka v. Simon, 3 Or. 555. Set-offs and Counterclaims. 515 Set-oflfs and Counterclaims (continued). Answer in equity held not such pleading of counterclaim as to prevent nonsuit: Dove v. Hay den, 5 Or. 500. Defense in a suit by married woman for equity in land, claiming a trust, held not to be a counterclaim: Id. Counterclaim to a suit in equity must be one upon which defendant might maintain action against plaintiff, and must be connected with subject-matter of suit: Dove v. Hayden, 5 Or. 500; Burrage v. B. G. & Q. ^l. Co., 12 Or. 1G9. Counterclaim irregularly pleaded, not demurred to, is sufficient after reply: Scheland v. Erpelding, 6 Or. 258. Recoupment for damages on breach of warranty of en- gine, in action for the price: Drake v. Sears, 8 Or. 209. Payment on note cannot be pleaded as counterclaim in a suit on the note, but may be proved under general alle- gation of payment: Hendrix v. Gore, 8 Or. 406. Payment on a mortgage is not a cause of suit which must be pleaded as a counterclaim in a suit to foreclose the mortgage: Id. One liable to a sheriff to indemnify him, or who has in- demnified him for an illegal levy, is not entitled to set off a prior judgment against the owner of the property upon the judgment which the latter obtains against the sheriff for the wrongful taking: Ladd and Bush v. Fer- guson and McFadden, 9 Or. 180. Right of set-off does not exist against a judgment for costs which has previously been assigned: Id. A legal demand, not liquidated, and not connected with the subject-matter of the suit, cannot be pleaded as a set-off in equity: Burrage v. B. G. & Q. M. Co., 12 Or. 1C9. Partial failure of consideration may be set up as a defense to an action on a bill of exchange, and the defendant recoup his damages though unliquidated: Da\ds v. Wait, 12 Or. 425. A claim in which a stranger to the suit is interested is not a proper subject of set-off: Williams & Co. v. Mil- ler & Co., 1 W. T. 88. Sale of a contract to furnish supplies to the United States being void, no valid counterclaim can be based thereon: Turnbull and Jones v. Farnsworth, 1 W. T. 444. 516 Settlements. Settlements. No interest allowed on mutual accounts until after settle- ment and balance is struck: Catlin v. Knott, 2 Or. 321. Item omitted by mistake from receipt on settlement may be shown by parol: Williams v. Poppleton, 3 Or. 139. Settlement of doubtful claims out of court are favored by the courts: Wells v. Neff, 14 Or. 66. Such settlement will not be set aside for ordinary mistake of law or fact: Id. Party seeking to set same aside should do equity, and re- store the property or rights he acquired by the settle- ment: Id. Sewers. See Municipal Corporations. Sheriflfe. See Fees; Executions, and Proceedings Supple- mental; Taxation. Service of complaint by deputy in hi-s own name, insuffi- cient; Dennison v. Story, 1 Or. 272. Sheriff cannot reattach property on new claims after ac- cepting redelivery bond: Duncan v. Thomas, 1 Or. 314. County commissioners cannot order sheriff to give new bond, or declare his office vacant on failure to do so: Ruckles V. State, 1 Or. 347. Nor, after approving, of their own motion disapprove his bond, and thus change the vested rights of the parties to the bond: Wren v. Fargo, 2 Or. 19. Requirement to sell known lots and parcels separately is directory: Griswold v. Stonghton, 2 Or. 61; Bank of British Columbia v. Page, 7 Or. 454. Powers of incumbent cease when he is served with notice of the election of successor: Warner v. Myers, 3 Or. 218; S. C, 4 Or. 72. Contest of the election does not operate to stay the effect thereof: Id. Emoluments unearned are subject to control of the legis- lature: Bird V. Wasco County, 3 Or. 282. Sheriff liable with his sureties for failing or refusing to levy: Moore v. Floyd, 4 Or. 101; Habersham v. Sears^ 11 Or. 431. Rights and special ownership in property attached: State V. Cornelius, 5 Or. 46. Duty to obey writ of execution in due form; receiving money conditionally: Richards v. Nye, 5 Or. 382. Sheriffs. 5] 7 Sheriffs (continued). "Sheriff" in section 110 of the Civil Code (sec. 112, Hill's A. L.), relating to arrest in civil cases, includes con- stables: Hume V. Norris, 5 Or. 478. Can appoint jailer, and is responsible for his acts, and county is not liable for his compensation: Crossen v. Wasco County, G Or. 215. Presumed that service was made in the county of the sheriff making the return: Roy v. ITorsley, G Or. 270. Sheriff may be indicted for converting money collected for taxes: State v. Dale, 8 Or. 229. In sucli action it may be proved that he was sheriff and collected from individual tax-payers: Id. Money so collected is public money for which he may be punished under section 559 of the Criminal Code (sec. 1772, Hill's A. L.): Id. Verdict of sheriff's jury under section 284 of the Code (sec. 284, Hill's A. L.) operates as a full indemnity to him as against the claimant of goods taken on execu- tion: Remdall V. Swackhamer, 8 Or. 502; Capital Lum- bering Co. V. Ilall, 9 Or. 93; Hexter v. Schneider, 14 Or. 184. After verdict against claimant he cannot bring replevin against sheriff for the goods: Id. But such verdict does not prevent action by the owner against a purchaser at the sheriff's sale: Hexter v. Schneider, 14 Or. 184, The proceeding is not judicial, and is not unconstitu- tional: Capital Lumbering Co. v. Hall, 9 Or. 93. Sheriff may be invested by law with powers and duties not usually belonging to such office: Lane v. Coos County, 10 Or. 123. Sheriff and tax collector not distinct offices: Id. Conipeneation which sheriff received under the act of 1880 includes his compensation as tax collector, and was all the compensation to which he was entitled: Id. Liability for trespass or to injunction upon garnishing a creditor on defective process: Ladd and Bush v. Ramsby, 10 Or. 207. Conversion by sheriff; plea of justification under a levy must allege that the debtor was the owner of the goods; Krcwson v. Purdoni, 11 Or. 266. 518 Sheriffs. Sheriffs (continued). Mandamus does not lie against sheriff to compel him io levy, unless the remedy on his bond is shown to be un- availing: Id. What sufficient complaint in action for failure to pay over money realized on execution: Schneider v. Sears, 13 Or. G9. In case of conflicting le^des, sheriff must not decide that his levy is subordinate, but must apply to the court, or must take indemity bond before releasing: Id. Sheriff is entitled to keeper's fees while in custody of attached property, which are to be taken out of the assets, and not charged as costs in the action: Id. Duty of a sheriff, on receiving writ of attachment, to levy at once upon sufficient property of defendant to satisfy the claim, and costs and expenses: Gerdes v. Sears, 13 Or. 358. When that is done, the writ is fully executed, and he must return it at once: Id. It is unnecessary to hold the writ to keep control of the property: Id. It is imperative upon sheriff to remit tax improperly assessed, upon presentation to him of affidavit, and list of property liable to taxation by the tax-payer: Smith V. King, 14 Or. 10. Has no power to inquire into the truth of such affidavit, or to resort to other evidence, but must strictly follow the statute: Id. Mandamus is proper remedy to compel sheriff who re- fuses in such case to remit tax improperly assessed: Id. Verdict of sheriff's jury upon trial of title to property taken on execution, protects sheriff, but does not pre- vent claimant from bringing replevin against pur- chaser: Ilcxter V. Schneider, 14 Or. 184. Kot entitled to commission on sale on execution where judgment creditor bids in the property, and no money passes into sheriff's hands: Coleman v. Ross, 14 Or. 349. And in such case sheriff cannot compel the purchaser to pay in money for his bid: Id. May be compelled to amend defective return, but the court has no power to compel him to alter a return Solicitors. 519 Sheriffs (continued). regular on its face: "Washington Mill Co. v. Kinnear, 1 W. T. 99. If sheriff make false return, party injured has his action against him for damage: Id. The record showing process was served by coroner, it is presumed that sheriff was at the time laboring under disability that made it incumbent on coroner to act in his stead: Rodolph v. Mayer, 1 W. T. 133. Duty of sheriff, where the decree provides for it, if the debt is unsatisfied by sale of mortgaged property on foreclosure, to proceed at once under copy of order of sale to levy on and sell other property of debtor: Hays V. Miller, 1 W. T. 143. Ships. See Admiralty; Boats and Vessels; Liens. Sidewalks. See Highways; Municipal Corporation*. Slander and Libel. Use of words "conversations," "discourses," "publish," and "declare," sufficient averment of publicity: Hurd v. Moore, 2 Or. 85. Former rule in slander, that words should be innocently construed, if possible, is now changed so that the words are taken to mean what is generally understood there- by: Id. Slanderous words charging heinous crime, actionable 'per se: Shartle v. Hutchinson, 3 Or. 337; Quigley v. !McKee, 12 Or. 22. Truth is a defense; but if not proved, the repeating the charge in the answer is an aggravation of damages: Id. Manner and acts of defendant, at time of speaking the words, may be considered by the jury to explain the words, and on the question of malice and damages: Leverich v. Frank, 6 Or. 212. Time alleged in the complaint need not be strictly proved; proof that the words were spoken at any time before the time alleged is suflQcient: Quigley v. Mc- Kee, 12 Or. 22. What words are actionable per se; for such words nomi- nal damages, at least, are recoverable: Id. Societies. See Voluntary Associations. Soldiers. See Militia; Offices and Officers. Solicitors. See Attorneys. 520 Sovereignty. Sovereignty. See Constitutional Law; Eminent Domain; Taxation. Special Verdict. See Jury and Jury Trial. Specific Performance. When the rights of the heirs of deceased obligee and sur- viving obligee, under a bond for a deed, are doubtful, Bpecific performance by the obligor will not be ordered until such rights are settled: Knott v. Stephens, 3 Or. 2GD. Where all the parties are not before the court, decree not granted unless the interest of each can be ascertained in the suit: Id. No attempt having been made to pay purchase price, and property having greatly increased in value, relief re- fused: Id. Not granted against a married wofnan on contract to convey her land made by her and her husband during coverture: Frarey v. Wheeler, 4 Or. 190. But value of improvements erected by party let into pos- session under the contract is a charge on the land: Id. Contract must be certain and definite and fully proved: Odell V. Morin, 5 Or. 96; Brown v. Lord, 7 Or. 302; Wagonblast v. Whitney, 12 Or. 83. This rule is applied more strictly against assignees and representatives of contracting parties: Id. Agreement must be fair and just, mutual, and" certain in its terms: Whitcaker v. Vanschoiack, 5 Or. 113; Wagonblast v. Whitney, 12 Or. 83. Where terms have been varied by parol, courts will not ordinarily decree specific performance: Id. Suit is not barred by a judgment in a former action on bond for a deed, where the parties and the property af- fected are the same, but the plaintiff has since acquired a new interest in the bond: Knott v. Stephens, 5 Or. 235. Relief discretionary and dependent upon the equitable circumstances: Snider v. Lchnhcrr, 5 Or. 385. May be granted to party in possession under imperfect deed; in such case, deed is construed as a contract to convey: Hill v. Cooper, 6 Or. 181. Possession, relied on as part performance, when contract was not in writing, must be visible and exclusive, and taken under the contract: Brown v. Lord, 7 Or. 302. Stake-holders. 521 Specific Performance (continued). Improvements erected by son on father's land no evidence of gift of the land: Id. The boundaries of the land must be clearly defined in the contract to warrant relief: Id. Contract to support, in consideration of land conveyed, will bo enforced in equity, and the land charged with such support: Watson v. Smith, 7 Or. 448. Parol promise, without consideration, for future leasing for years gives promisee no rights to specific perform- ance, though without request he goes into possession: Pulse V. Ilamer, 8 Or. 251. Possession under an agreement to convey in which de- scription was defective, held sufficient to identify the land: Richards v. Snider, 11 Or. 197. In a proper case, it is as much a matter of course for equity to grant specific performance as for a court of law to give damages: Richards v. Snyder, 11 Or. 501. When time is not of the essence of the contract, mere lapse of time without laches does not bar relief: Id. To take a parol contract out of the statute of frauds, the evidence must show the quantity of land, define its boundaries, and fix the consideration: Wagonblast v. Whitney, 12 Or. 83. Vendor may have remedy against vendee to enforce pay- ment of purchase price: Sanford v. Wheelan, 12 Or. 301. But under a covenant to convey free of encumbrances, vendor cannot have specific performance until he re- moves or deducts for existing liens: Id. Defendant may plead in his answer a contract different from the one stated in complaint: Thompson v. Hawley, 14 Or. 199. IfTsuch case if the court finds the contract pleaded in the answer to be the true contract, defendant is entitled to a decree in accordance therewith: Id. Where it appears that the contract to convey was not to convey by a good and sufficient deed, but simply to con- , vey whatever title vendor had, that is all vendee can insist upon: Id. Spirituous Liquors. See Liquor Laws. Stake-holders. See Wagers. 522 Stare Decisis. Stare Decisis. See Law of the Case. Stare decisis is the pohcy of the courts, and the doctrine should not be departed from except when the former case has been decided contrary to principle: State v. Clark, 9 Or. 466; Multnomah County v. Sliker, 10 Or. 65; Despain v. Crow, 14 Or, 404. The principle is particularly applicable where court has declared the constitutionality of a statute and is called upon to pass upon the question again: Multnomah County V. Sliker, 10 Or. 65. Case criticised but followed on the principle of stare de- cisis: Corvallis v. Stock, 12 Or. 391; Sheridan v. Salem, 14 Or. 328. Former adjudication should not be disturbed eiccept for weighty reasons: Chat Walts v. Territory, 1 W. T. 409. State. See Taxation. The immunity of the state as a party defendant extends only to its being a party of record: Dunn v. State Uni- versity, 9 Or. 357. Such immunity does not extend to its agents, who hold the title and possession of real property, in a suit con- cerning the same: Id. Private parties cannot use the name of the state to try private controversy by quo warranto: Wilson and Wake- man V. Shively, 10 Or. 267. State is proper party to bring suit for an accounting against persons having charge of funds arising from the sale of school lands: State v. Cliadwick and Brown, 10 Or. 423. " States," as used in the act of Congress of 1837, regard- ing pilotage, includes " territories ": Edwards v. Steam- ship Panama, 1 Or. 418; Neil v. Wilson, 14 Or. 410. State Treasurer. See Treasurer of State. State University. See University. Statute of Frauds. Contract to convey land may be abandoned by parol: Gutlirie v. Thompson, 1 Or. 353. Unless contract is necessarily incapable of performance within a year, not within statute: Hedges v. Strong, 3 Or. 18; Southwell v. Breezley, 5 Or. 143; S. C, 5 Or. 458. Not necessary to allege in complaint that the promise was in writing: Id.: Albee v. Albee, 3 Or. 321. Statute of Frauds. 523 Statute of Frauds (continued). If promise to pay debt of another arises out of new con- sideration between the new parties, it is not within statute: Id.; Ludwick v. Watson, 3 Or. 250. Not necessary to allege, in pleading, that the agreement for sale of land was written: Albee v. Albee, 3 Or. 321. In case of collateral undertaking, under the statute, the plaintiff should declare specially: Hayden v. Stead- man,- 3 Or. 550. Verbal lease for two years cannot be proved to establish lease for one year, good under the statute: Noyes v. Stauff, 5 Or. 455. Partnership agreement, relating in part to lands, is not void in equity, though not in writing, and may be proved by parol: Knott v. Knott, 6 Or. 142. Agreement for the sale of personalty of more than fifty dollars value must be written, and express the consider- ation, and be subscribed by the party to be charged: Corbitt V. Salem Gaslight Co., 6 Or. 405. Possession of land, relied on as part of performance, to take the contract out of the statute, must be visible and notorious, and taken under the contract: Brown v. Lord, 7 Or. 302. Person going into possession without request, on parol promise of a future written lease for years, gains no right as against the owner: Pulse v. Ilamer, 8 Or. 251. Where persons own land through which a stream flows, and by parol agree upon its division and appropriation, and partly perform the agreement, equity will enforce: CofFman v. Robbins, 8 Or. 278. Parol proof to establish a resulting trust in land is admis- sible, but not to prove agreement to sell the interest of a cestui que trust: Chenoweth and Johnson v. Lewis, 9 ^Ot. 150. Parol agreement to sell an equitable interest in land is void: Id. Part performance, to take the case out of the statute, must be of the identical contract alleged, which must be cer- tain and definite, and proved as alleged: Plymale v. * Corastock, 9 Or. 318. When parol agreements between adjoining owners respect- ing boundary are within the statute: Lennox v. Hen- dricks, 11 Or. 33. 524 Statute or Fkauds. Statute of Frands (continued). Parol agreement to purchase land with purchaser's own money, and to hold same in trust for a third party, is void: Kelly v. Ruble, 11 Or. 75. To take parol contract to convey land out of the statute, its terms must be certain, and the boundaries and con- sideration fully proved: Wagonblast v. Whitney, 12 Or. 83. Contract for sale of land contained in letters between the parties being uncertain, parol evidence of former under- standing of the parties admissible in construing: Fisk V. Henarie, 13 Or. 156. Parol evidence of contract for sale of land is admissible to be followed by proof of a subsequent written recognition by party to be charged: Id, Agreement by a vendor of land to pjly a balance of pur- chase-money to a stranger to tlie contract is not within the statute: Strong v. Kamm, 13 Or. 172. Where a contract contains two mutual promises, and is signed only by the party suing upon it, the other party may successfully interpose the defense of the statute: Hawley, Dodd, & Co. v. Kenoyer, 1 W. T. 609. Contract held not to be a sale, and not within the statute: P. S. I. Co. V. Worthington, 2 W. T. 472. Statute of Limitations. See Adverse Possession. On substitution of new term of limitation by a new law, time elapsed under old law is to be computed: Mc- Laughlin V. Hoover, 1 Or. 131. WHien the cause of action is barred, repeal of the statute does not destroy the bar: Baldro v. Tolmie, 1 Or. 176. Pleading that the action did not accrue within six years is sufficient, though the statutory limitation is five years, since the latter is included in the period pleaded: Id. The statute must be pleaded, or cannot be taken advan- tage of on error: Steamer Senorita v. Simonds, 1 Or. 274. Where there is no presentment of claim against estate within statutory period therefor, claim is barred: Zach- ary v. Chambers, 1 Or. 321. Claim against the state, presented to legislature and not paid, and afterwards sued on under a statute enacted to provide for a right of action against the state, is not Statute of Limitations. 525 Statute of Limitations (continued). barred, thougli .six years liave elapsed since presenta- tion to the legislature, there being no laches, and the plaintiff suing within a reasonable time after the stat- ute gave him a remedy: Ketchum v. State, 2 Or. 103. Domestic judgment is not within statute of limitations, and may be kept alive until paid: Murch v. :Moore, 2 Or. 189; Strong v. Barnhart, 5 Or. 49G. The statute begins to run from the time a payment is last made on bill or note: State v. Ilulin, 2 Or. 307; Suth- erlin v. Roberts, 4 Or. 378; Creighton v. Vincent 10 Or. 5G. Payment of interest or principal of collections by attorney prevents statute running against client for collections retained by attorney: Torrence v. Strong, 4 Or. 39. Absence of mortgagor from state does not prevent statute from running against rights to foreclose: Anderson v Baxter, 4 Or. 105. Statute goes to the remedy by action or suit: Id. Equity acts by analogy to the law concerning limitations: Id. A suit for foreclosure is a suit in rem, and the statute of limitations does not apply to such a proceeding in equity, there being no analogy to actions at law: Id. Mortgagee in possession occupies no more favorable posi- tion than if out: Id. Payment by operation of law without request of debtor does not prevent statute from running: Id. Foreclosure suit is not a suit to determine interest in real property within section 378 of the Code (sec. 382, Hill's A. L.). and is not governed by statute of limitations re- garding such suits: Id. Payment by administrator of deceased joint debtor pre- vents statute running against survivor: Sutherlin v Ptoberts: 4 Or. 378. Under section 25 of the Code, part payment is the test whether suit is barred, and if not barred, suit may be founded on the original promise: Id. Any person who could be compelled to pay may make such payment: Id. Amendment limiting period to less time for bringing suit applies only to causes accruing subsequently: Pitman V. Bump, 5 Or. 17. 52G Statute of Limitations. Statute of Limitations (continued). Mortgage niay be foreclosed after the notes are barred: Myer v. Beal, 5 Or. 130; Gray v. Holland, 9 Or. 512. Statute does not extinguish the debt, but simply suspends the remedy: Id.; Goodwin v. Morris, 9 Or. 322; but see Parker v. Metzger, 12 Or. 407. Suit on official undertaking is not an action for the recov- ery of a penalty or forfeiture within subdivision 2 of section 7 of the Code (sec. 7, Hill's A. L.): Howe v. Taylor, 6 Or. 284. Statute begins to run against debt created in another state, by person subsequently removing to Oregon, when created, and not when he arrives in Oregon: McCormick V. Blanchard, 7 Or. 232. Answer pleading statute of another state in bar must al- lege that the cause of action arose in that state, and was between non-residents of this state: Crawford v. Roberts, 8 Or. 324. Loss of a judgment roll will not be ground for the inter- ference of a court of equity to prevent statute running on an action of ejectment founded thereon, when the roll was found before the time expired: Farris v. Hayes, 9 Or. 81. The statute affects the remedy only, and not the right or title to personal property: Goodwin v. IMorris, 9 Or. In the absence of allegation and proof to the contrary, common-law rule of limitations presumed to prevail in another state: Id. Payment of part of debt, with the understanding that such jmyment is to be applied thereon, revives action barred: Creighton v. Vincent, 10 Or. 56. Section 25 of the Code (sec. 25, Hill's A. L.) refers only to payments made on contracts before the statute has run against them, and fixes by such payment a new date from which the limitation of action thereon begins to run -""Pt. Vacancy. See OlBees and OfJSoers tunfrienrTaL'""™"' """^'"^ ^"<'^°-^ «— Variance. See Nonsuit. ""TlTir 1- ""^.tf '" ^P"'' ^«57, may be admitted to prove allegation "heretofore, to wit, about and pre- ShTrff T^ul^^' °f «^'"''^^- '857": Jackson' v. fenarff and Hill, 1 Or. 246. A conviction for giving cannot stand under indictment for selling liquor: Wood v. Territory 1 Or 293 Receipt for sixty-five dollars, as evidence to pr"ove an in- dictment for forging a receipt for sixty dolllrs isl a fatal variance: Shirley v. State, 1 Or. 269 ' Allegations of sums, names, dates, and the like must be proven as alleged: Id. Proof of selling any kind of spirituous liquor will support indictment for selling particular kind of liquor a Wed under a videlicet: Frisbie v. State, 1 Or 248 discretionary with court to disregard variance; nothing but abus_e of the discretion reviewable: BrownV Moore! A Ur. 4oo; Henderson v. Morris, 5 Or 24 If plamtiff desires to recover on contract different from Crltor^lVv^ ■""^' ^^* '-- '° — -i-- Bants v. mildtn 1, T'' "'''"'' P"'y ™™' h"™ been misled to his prejudice: Hill v. Mellon, 3 Or. 542- Dodd V. Denny, 6 Or. 156; Roy v. Horsley, 6 Or. 382 When misled_,^proof must be made to the trial court, to 562 Variance. Variance (continued). take advantage of section 94 of the Code (sec. 96, Hill'8 A. L.): Id. On failure to prove written lease for two years, proof of verbal lease for two years is not admissible to establish lease for one year, good under statute of frauds: Noyes V. Stauff, 5 Or. 455. Indictment for larceny of the property of A is not sus- tained by proof of the property of A and B, as partners, unless A had a special ownership therein: State v. Wilson, 6 Or. 428. Proof of statement sworn to by person charged with per- jury, differing in the date from the statement in the in- dictment, the variance was held material: State v. Ah Sam, 7 Or. 477. Slight variance will not be considered on appeal; it is pre- sumed that the pleadings were amended on the trial to conform with the proof: Davidson v. 0. & C. R. R. Co., 11 Or. 136. Time alleged in complaint for slander need not be strictly proved: Quigley v. McKee, 12 Or. 22. Variance not appearing affirmatively to have worked in- jury is no ground for reversal: Tucker v. Flouring Mills Co., 13 Or. 28. Complaint charging defendant as a common carrier, no recovery can be had on proof of liability as a private carrier only: Honeyman v. Or. etc. R. R. Co., 13 Or. 352. Venditioni Exponas. See Executions, and Proceedings Supplemental. Vendors' Liens. See Liens. Vendors and Purchasers. See Contracts; Deeds; Liens; Notice; Sales; Specific Performance; Statute of Frauds; Tender. Venue. See Criminal Law; Replevin. Larceny may be prosecuted in the state or county where the goods are taken by the oflfender: State v. Johnson, 2 Or. 115. On motion for change of venue for convenience of witnesses, counter-affidavits may be heard: Lander v. Miles, 3 Or. 35. Where suit brought to determine adverse claim to real property in wrong cpunty, the defect is cured by subse- Wagers. 563 Venue (continued). quent change before answer by order of court: Weiss y. Bethel, 8 Or. 522. Changing place of trial, on account of local prejudice, rests faolel}' within the discretion of the court: Ward v. Moorey, 1 W. T. 104; McAllister v. Territory, 1 W. T. 360. Court may of its own motion examine the public feeling, and properly make inquiries of the jurors touching the same: Id. Actions for causes mentioned in section 48, Practice Act of 1877, must be brought in the county or district in which the subject of the action lies: Wood v. Mastick, 2 W. T. 64. Venue of a crime in an indictment is sufficiently set out though the county is not stated, the crime being alleged to have been committed in the city of Seattle, the court taking judicial notice that Seattle is in King County: Schilling v. Territory, 2 W. T. 283. Verdict. See Criminal Law; Jury and Jury Trial. VeriJS.cation. See Costs and Disbursements; Pleading. Vessels. See Admiralty; Boats and Vessels; Liens. View. See Jury and Jury Trial. Voluntary Assignments. See Assignment for Benefit of Creditors. Voluntary Associations. Unincorporated religious societies may take trust prop- erty for their benefit: Trustees v. Adams, 4 Or. 76. Trustees of such societies may sue for the benefit thereof: Id. Voluntary Conveyances. See Deeds* Fraudulent Con^ veyances. Volttiitary Payments. See Contracts; Payments. Wagers. See Gaming. If neither party wins, each party has right to withdraw his deposit from stake-holder: By bee v. Burbank, 2 Or. 296. Wager on an election is illegal and void as against public policy: Willis v. Hoover, 9 Or. 418. Money wagered may be recovered at any time before the event upon which it is ventured happens, if deposited with the opposite party: Id. 564 Wagers. Wagers (continued). If deposited with stake-holder, may be recovered at any- time before paid to winner: Id. "What is sufficient demand from stake-holder: Id. Purse or prize offered for the horse that will trot in the best time less than a given time is not a wager: Misner V. Knapp, 13 Or. 135. There must be an element of chance of gain or risk of loss to constitute a wager: Id. Wages. See Compensation. In an action upon an agreement to pay a fixed rate, proof of reasonable value is not admissible: Davis v. Mason, 8 Or. 154. Where contract to pay in gold coin for services is void for not being in writing, reasonable value may be proved under proper pleadings: Id. When a son working on his father's farm is entitled to wages: Albee v. Albee, 3 Or. 321. In action for wages, defense that plaintiff did not work diligently must be pleaded: Id. Pefense in an action for wages, that plaintiff was a pauper when taken into defendant's family, must be pleaded: Bennett v. Stephens, 8 Or. 444. Promise to pay for services rendered by a pauper or rela- tive taken into the family is not implied: Id. Subsequent express agreement to pay such person enti- tles him to recover reasonable value: Id. Waiver. See Appeal and Error; Criminal Law; Jurisdic- tion; Liens; Practice. Ward. See Guarjdian and Ward. Warehousemen. Not chargeable with conversion, merely for mingling grain stored, with other grain: Sears v. Abrams, 10 Or. 499. The identity of grain so stored is not lost, nor is it thereby placed beyond a lien thereon: Id. Warehouseman's receipt is not negotiable, in the absence of statute: Solomon v. Bushnell, 11 Or. 277. Keceipt transferred carries no better title to the property than assignor had: Id. But a symbolical delivery of the property may be made by assignment of receipt, where the receipt is to the bailor or his order: Gill & Co. v. Frank, 12 Or. 507. Waste. 5G5 Warehousemen (continued). But wlierc the warehouseman by bis receipt restricts bis undertaking to delivery to tbe bailor, a transfer of tbe receipt does not, without the warehouseman's consent, charge the possession of the property: Id. Where several depositors have wheat stored in a ware- bouse, and a deficiency occurs without the fault of either, all must suffer loss in proportion to tbe amount of their wheat: Brown and Goodman v. Northcut, 14 Or. 529. In such case, one who has received a larger portion than his ratable share is bound to account to the others for his proportion of the loss: Id. But it seems that a depositor is not liable for a share of tbe loss, unless it occurred after he deposited his wheat: Id. Warrant of Arrest. See Arrest. Warrants. Authority of secretary of state to draw warrants depends on prior appropriation: Brown v. Fleischner, 4 Or. 132. State treasurer presumed to know what appropriations have been made: Id. He cannot pay, unless drawn on special fund, if not authorized to be paid from the general fund: Id. Order of County Court to proper officer to receive and cancel certain warrants and pay them as other county warrants, which were previously issued to be paid out of a special appropriation, is discretionary, and cannot be reviewed: Burnett v. Douglas County, 4 Or. 388. State treasurer must set aside a fund to pay warrants under centennial commission act: Simon v. Brown, 5 Or. 285. "Tie cannot pay such warrants out of the general appropri- ation act: Id. County warrants in the hands of the treasurer duly can- celed and indorsed are presumed paid to the indorser: Portland v. Besser, 10 Or. 242. Warranty. See Deeds; Insurance; Sales. Waste. Injunction lies to restrain waste, threatened or being committed: Sheridan v. McMullen, 42 Or. 150. To amount to waste, the injury muat be permanent, or 566 Waste. Waste (continued). tend to destroy the identity of the property: Davenport V. Magoon, 13 Or. 3. May be accomplished by any material and substantial alteration of a building leased: Id. Privilege in a lease to alter does not justify tearing down and building another building, though better: Id. Water and Watercourses. Construction of a conveyance of water power, with flowage unobstructed: Or. Iron Co. v. Trullinger, 2 Or. 312. The right to flow back the water to the foot of the present wheel, and the right at all times to use all water which naturally flows below said mill, means the water as it flows from the mill-wheel, the mill being in operation: Oregon Iron Co. v. Trullinger, 3 Of". 1. Right to use water implies right to dam, and reasonably detain, but not divert: Id. What is an unreasonable detention is a question of fact generally: Id. Water power which will be taken or rendered less valu- able by corporation building canal may be considered by the jury as an element of damages in proceedings to condemn the right of way: Willamette Falls C. & L. Co. V. Kelly, 3 Or. 99. How far navigation of streams above tide is governed by rules applicable to large navigable streams: Weise v. Smith, 3 Or. 445; Shaw v. Oswego Iron Co., 10 Or. 371. Ebb and flow of tide not the test of navigability in United States: Id. Stream navigable for any purpose is to that extent sub- ject to law regulating navigation: Id.; Haines V. Welch, 14 Or. 319. So private stream navigable for logs, etc., is subject to such public use: Id.; Felger v. Robinson, 3 Or. 455; Shaw v. Oswego Iron Co., 10 Or. 371; Haines v. Welch, 14 Or. 319. How far such stream may be obstructed by booms: Id. Right to touch upon banks of such stream founded on necessity: Id. Riparian owner cannot deny the public the right to navi- gate such stream: Id. , Water and Watercourses. 567 Water and Watercourses (continued). Question of necessity of fastening boom on such streain to plaintiflf's land is for the jury: Id. And so, what would be a reasonable time for removal thereof: Id. The right to float logs between certain points does not justify their injuring dam at terminus: Felger v. Rob- inson, 3 Or. 455. . Stream need not be navigable for logs during the whole year to constitute navigable stream therefor: Id.; Shaw V. Oswego Iron Co., 10 Or. 371. Every proprietor of land tbrough which water flows, above or below the surface, in a well-defined channel, has the right to its use without diminution: Taylor v. Welch, 6 Or. 198; Shively v. Hunt, 10 Or. 76; Shook v. Colohan, 12 Or. 239; Weiss v. Oregon Iron etc. Co., 13 Or. 496. But the rule does not apply to water percolating through the soil in an unknown channel: Id. Agreement to convey land, mill privilege, etc., construed: Brugger v. Butler, 6 Or. 459. The actual stream, and not the meander line improperly located by government su rvey, is the boundary of a riparian owner on a navigable stream: Minto v. Dela- ney, 7 Or. 337; Weiss v. Oregon Iron etc. Co., 13 Or. 496. Such owner acquires right to accretions, and land so formed cannot be entered by a stranger as swamp-lands: Id. Riparian rights extend laterally into the stream, and in- clude a reef of rocks connected with shore at low water, but do not extend up or down stream: Moore v. Wil- lamette T. & L. Co., 7 Or. 355. The United States can grant onl}'^ to the meander line of ^^ high tide on navigable streams: Hinman v. Warren, 6 Or. 408; Parker v. Taylor, 7 Or. 435. Land lying between high and low water belongs to the state, and can be sold by it: Parker v. Taylor, 7 Or. 435; Johnson v. Knott, 13 Or. 308. Shore-owner may build wharves into the water, not ob- structing navigation: Id. Sale by shore-owner of lands not including tide-land owned by him does not give the purchaser the right to erect wharves on the tide-lands: Id. 568 Water and Watercourses. Wc.ter and Watercourses (continued). Erection of wharves in front of riparian owner's land may be enjoined: Id. Water rights for mining or other purposes, secured by laws of the United States, cannot be lost by non-user alone short of the statutory period of limitation of real prop- erty rights: Dodge v. Harden, 7 Or. 456. Such right may be extinguished by abandonment:^ Id. Effect of abandonment for a year under the Oregon stat- utes: Id. Reservation in grant of a lot bounded on tide-water, of all privileges around said lot, is a reservation of wharf rights: Parker v. Rogers, 8 Or. 183. Instruction given in action against one not a riparian owner for diverting stream, held a -correct statement as to riparian owners, but not pertinent in this case: Hay- den v. Long, 8 Or. 244. Custom of appropriating water, recognized by the laws of the United States as modifying the rights of riparian owners, must be alleged and proved: Lewis v. McClure, 8 Or. 273. Agreement made by parol between property owners as to the division of a stream of water flowing through their lands, where partly performed, may be enforced in equity: Coffman v. Robbins, 8 Or. 278. Where one buys land, he is presumed to buy with notice of the water rights on the premises: Id. Grant of a right of way for a mill-race does not include a right to appropriate water flowing across the right of way on owner's land: Miller v. Vaughn, 8 Or. 333. Such grant is an easement, and reservation of the water is not necessary: Id. Grant of right of way to enter, build, repair, etc., ditches, on grantor's land, construed: Spear v. Cook, b Or. 380. Act of 1880 (see. 3496, Hill's A. L.), to protect salmon, does not apply to the Columbia River: State v. Stur- gess, 9 Or. 537; S. C, 10 Or. 58. To divert or obstruct a watercourse is a nuisance for which equity affords remedy: Shively v. Hume, 10 Or. 76. Boundary of lands on streams in which tide ebbs and flows, and large navigable streams, is high-water mark, Water and Watercourses. 669 Water and Watercourses (continued). but on all other streams is the middle of the river: Shaw V. Opwego Iron Co., 10 Or. 371. It is the duty of a railroad company maintaining a ditch to protect adjoining proprietors from overflow: David- son V. 0. & C. R. R. Co., 11 Or. 136. One claiming the right to overflow land by maintaining a dam must show a right to do so bj* grant, license, or prescription: Wattier v. Miller, 11 Or. 329. Such person cannot enjoin one in possession of the over- flowed land from draining the same without showing a right to so overflow the land: Id. Such person must prove his right affirmatively, and not rely on the weakness of the title of him in possession: Id. A former decree having established defendant's right to divert a stream, it cannot again be litigated between the parties: Neil v. Tolman, 12 Or. 289. Rights of shore-owner on tide-water or navigable streams are not derived from the state, but are held in subordi- nation to the rights of the public: Wilson v. Welch, 12 Or. 353. Covenant in a deed for division of a stream, and repairing dams in certain proportions, construed: Salem v. Salem F. M. Co., 12 Or. 374. In an action for damages for overflowing plaintiff''s land, a variance as to how the overflow was occasioned is im- material on appeal, when the error does not affirmatively appear: Tucker v. Flouring Mills Co., 13 Or. 28. Right to raise water of a stream to a certain stage is no defense to action for damages resulting from raising it above that stage: Id. '^Point where water usually rises in ordinary high water is the true meander line: Johnson v. Knott, 13 Or. 308. Lot-owner having granted right to erect wharf in front of his lot on tide-water, his grantee of the lot is estopped by his deed from objecting to its maintenance: McCann ' v. Or. R'y Co., 13 Or. 455. Grant of riparian right by a donation claimant, prior to his obtaining patent by deed without covenant, passes no title: Id. 570 Water and Watercourses. Water and Watercourses (continued). City of Astoria has no power except to establish wharf line, as to erection of wharves on Columbia Iliver: Id. Riparian proprietor has no property in the water itself; a simple usufruct: Weiss v. Or. Iron etc. Co., 13 Or. 49G. Is entitled to the use of the flow of water in its natural course and the momemtum of its fall: Id. May use the water if it is returned uncorrupted and with- out essential diminution: Id. What is reasonable use is a question of degree, depending upon the size and capacity of the stream: Id. Manufacturer cannot divert and discharge water in differ- ent channel without consent of lower owners, however beneficial his enterprise may be to the public: Id. Injunction will issue at suit of ripari-an owner to prevent diversion of stream, though he suffers small damage, and uses little of the water: Id. Where two settlers on government land severally divert a stream at a point above them, and subsequently one of them acquires title to land at such point, prior appro- priation, and not common-law riparian rights, governs: Kaler v. Campbell, 13 Or. 596. Under acts of Congress, settler by prior appropriation ac- quires a vested right which subsequent settlers above or below are bound by: Id. Right to float logs down a stream does not include right to injure or trespass upon the banks, or to cause water to overflow to the injury of shore-owner: Haines v. Welch, 14 Or. 319. Whether such injury was occasioned by negligence or not is immaterial: Id. License from shore-owner to float logs down a stream con- fers no greater right on licensee than he would have without it if the stream is navigable: Id. Ways. See Easements; Highways; Municipal Corporations. Wharves. Erection of wharves in front of plaintiff's land, which extends to high-water mark, may be enjoined: Parker V. Taylor, 7 Or. 435. Shore-owner may erect wharves into the stream, not ob- structing navigation: Id. Deed of a lot bounded by tide-water, reserving all privi- Wills. 571 Wharves (continued). leges around said lot, reserves wharf rights: Parker v. Rogers, 8 Or. 183. Lot-owner having granted privilege of building wharf in front of his lot on tide-water, his subsequent grantee of the lot is estopped by his deed to object to the mainte- nance of such wharf: McCann v. Oregon R'y etc. Co., 13 Or. 455. . Power of city of Astoria with reference to erection of wharves on Columbia River, within the city limits, is ConjEined to establishing a wharf line: Id. * Wills. See Administration; Administrators and Executors; Legacies. 1. Making. 2. Probate. 3. Construction and Effect. 4. Setting Aside. 1. Making. The making by the testator of his mark to his will is suf- ficient signing: Pool v. Buffum, 3 Or. 438; Moreland v. Brady, 8 Or. 303. In such case, if a person writes the testator's name, it is not necessary to state that he subscribed the testator's name at the latter's request, unless it be done by tes- tator's direction: Moreland v. Brady, 8 Or. 303. 2. Probate. County Court has exclusive jurisdiction to probate, and a will is not admissible in evidence to establish title until it has been probated: Willamette Co. v. Gordon, 6 Or. 175; Jones v. Dove, 6 Or. 188. Original will, after probate, does not have to be offered and proved when used as evidence: Jones v. Dove, 6 '^ Or. 188. County Court has exclusive jurisdiction, and its decree is conclusive until set aside: Hubbard v. Hubbard, 7 Or. 42. Will must be re-probated when directly attacked, and the burden is on the proponent: Id. In such case, new proof must be made in the same man- ner as when a will is originally probated: Id. Proceedings in probate hold regular, if from all the papers in the record jurisdiction appears: Moore v. Willamette T. & L. Co., 7 Or. 359. 572 Wills. Wills (continued). Objection tliut petition was not verified is waived if not taken at the time: Id. 3. Construction and Effect. Witness not disqualified from taking a trust estate in wliich he has no beneficial interest: Hogan v. Wyraan, 2 Or. 302. A will operates only on the property found actually to belong to testator: Jette v. Picard, 4 Or. 296. Intention of testator is looked to in construing: Hum- phreys V. Taylor, 5 Or. 260. Provision giving wife and minor children use of realty until disposed of by executor, legal: Id. Parol evidence is admissible to make certain the person or thing described: Jones v. Dove, 6 Or. 188; S. C, 7 Or. 467; Moreland v. Brady, 8 Or. 303. When shown to have been duly executed, will is pre- sumed to express the testator's unrestrained wishes, but the presumption is disputable: Greenwood v. Cline, 7 Or. 17. Executors as trustees to pay debt and hold property for certain trusts have implied power to sell suflicient to pay debts: Brown v. Brown, 7 Or. 285. Order of confirmation by Probate Court of such sale is unnecessary: Id. Devise to trustees in perpetuity for benefit of a city is valid: Id. Will, devising land described as a part of the land of Bar- tholomew Dove, may be introduced in evidence, to be followed by proof that Bethuel Dove was meant: Jones V. Dove, 7 Or. 467. Bequest, " to be given to him when he is twenty-one years of age," is a vested legacy, and on the death of legatee before reaching that age his representatives take: War- ren v. Hcmbree, 8 Or. 118. Parol proof that- testator did not own the lots named, but did own others in same block, admissible: Moreland v. Brady, 8 Or. 303. In such case, the number of the lots is stricken out as false description, and the number of the block being left, is lield sufficient description of the lots devised: Id. Devise speaks from time of testator's death, unless the in- Wills. 575 Wills (continued). tention appears otherwise: Gerrish v. Hinman, 8 Or. 348. Devise to testator's living children, and to the children of his deceased children, construed to intend division of property per stirpes, and not per capita: Id. Will of hushand referred to in testatrix's will, which adopts its provisions, becomes a part thereof: Gerrish V. Gerrish, 8 Or. 351. Children and grandchildren being named in the hus- band's will are deemed "named and provided for," within the statute in such case, by the testatrix's will: Id. The object of the statute requiring naming of children in will, explained: Id. Devise to A and her body heirs, with condition of rever- sion on A's death without issue, construed: Rowland v. Warren, 10 Or. 129. AVill, construed not to create a perpetuity, devising to daughters in being, with contingent remainders in their children, and certain executory limitations over: Bu- channan v. Schulderman, 11 Or. 150. Bequest to wife of absolute use and control, etc., for life, held to confer the " use," but not the consumption of the estate on her: Leahy v. Card well, 14 Or. 171. Residue defined; it is ascertained when final account is presented and allowed: Id. Residuary legatee is entitled to take when final account is presented and acted upon by the court: Id. Such legatee is not chargeable with interest on notes given for funds belonging to the estate, after final settlement: Id. *$. Setting Aside. The nature and weight of evidence sufficient to set will aside for fraud and undue influence: Greenwood v. Cline, 7 Or. 17. Testamentary capacity implies a knowledge of the prop- erty, and of the manner in which it is desired to dispose of it: Hubbard v. Hubbard, 7 Or. 42; Heirs of Clark v. Ellis, 9 Or. 128. The character of the provisions of the will may be ex- amined when undue influence is alleged, but is not 574 Wills. Wills (continued). alone sufficient to set the will aside upon that ground: Id. Not sufficient to show mere motive and opportunity of beneficiary to use undue influence, but that he did ex- ert the undue influence: Id. Acts done in course of administration under a will, which is afterwards set aside for the insanity of the testator, are valid: Brown v. Brown, 7 Or. 285. County Court has jurisdiction in proceeding to contest will and revoke letters testamentary: Heirs of Clark v. ElHs, 9 Or. 128. Insanity at the time of making the will is not presumed, where the nature of the testator's malady is occasional and temporary: Id. Delirium in an aged infirm person distinguished from in- sanity: Id. The test of capacity to make will is, whether testator's mind, at the time, was capable of knowing and under- standing what he was doing, and to whom he was giv- ing his property: Id. Witnesses. See Costs and Disbursements; Evidence; Fees; Wills. 1. Competency. 2. Credibility. 3. Examination. 1. Competency. Where two persons are jointly indicted, though tried sep- arately, one cannot testify for the other until acquitted or convicted: Latshaw v. Territory, 1 Or. 141. Witness not rendered incompetent by referring to a mem- orandum before being called: White v. Allen, 3 Or. 103. Prosecutrix in a case of rape, though a child, must be sworn: 8 Or. 177. There is no precise age beyond which children are com- petent; their understanding is the test: State v. Jack- son, 9 Or. 457." Discretionary with court to allow child to testify, and discretion not reviewable: Id. Neither husband nor wife can, without consent of other, testify concerning communications made by the other during marriage: Long and Spaur v. Lander, 10 Or. 175. Witnesses. '676 Witnesses (continued). Failure of attorney to object to such testimony does not render witness competent, but on appeal it is presumed consent was given: Id, Witness, examined by the grand jury, whose name is not put on the indictment, may be examined by the prose- cution, where the defendant is not misled as to his de- fense: State V. Anderson, 10 Or. 448. Act of 1880, amendatory of section 166, Criminal Code (sec. 1365, Hill's A. L.), does not make co-defendants jointly indicted competent witnesses for each other: State V. Drake, 11 Or. 396. Whether the acquittal of a co-defendant, thus rendering him competent, he being a material witness, is ground for new trial, qiieere: Id. Who is an " intimate acquaintance," competent to testify as to sanity: State v. Murray, 11 Or. 413. An accessary before the fact is not a competent witness on behalf of the prisoner: Edwards v. Territory, 1 W. T. 195. Statutes of 1862-63 do not alter the rule of the common law in this respect: Id. Right of adverse party to be examined as a witness, when the " assignor of a thing in action " has been so exam- ined: Glasford and Shield v. Baker and Cain, 1 W. T. 224. Exclusion of witness from testifying for the prisoner on account of drunkenness; when party entitled to new trial: Fox v. Territory, 2 W. T. 297. In action by administrator against son of the deceased, for misappropriation of part of the estate, a brother of the defendant is competent witness in his behalf, not being interested adversely to the estate: McCoy v. Ayers, ^ 2 W. T. 307. 2. Credibility. Evidence laying ground for impeachment must be rele- vant: Roberts v. Carland, 1 Or. 332. Inconsistent declarations are admissible to impeach, but .are not evidence of the facts therein stated: State v. Fitzhugh, 2 Or. 227. Party, witness for herself, cannot be impeached by her 576 Witnesses. Witnesses (continued). letter, written to third person in language indicating that she is unchaste: Leverich v. Frank, 6 Or. 212. Moral character cannot be impeached by evidence of par- ticular acts: Id. Particular facts called out on cross-examination of im- peaching witness may be considered by the jury on the credibility of the witness impeached: Steeples v. New- ton, 7 Or. 110. Method of impeaching by inquiring into general reputa- tion: Page V. Finley, 8 Or. 45; State v. Clark, 9 Or. 466. Of impeaching by inconsistent statements: State v. Mc- Donald, 8 Or. 113; Sheppard v. Yocum and De Lash- mutt, 10 Or. 402; State v. Abrams,'ll Or. 169; State v. Lurch, 12 Or. 104; Krewson & Co. v. Purdom, 13 Or. 563; Thompson V. Territory, 1 W. T. 547. In determining the credibility of a witness, the jury may consider the probabilities of truth of his statements from their own experience: State v. Ah Lee, 8 Or. 214. Where witness has been impeached by proof of inconsis- tent statements, evidence of his reputation for veracity may be introduced in rebuttal: Glaze v. Whitley, 5 Or. 164; contra, Sheppard v. Yocum and De Laslimutt, 10 Or. 402. Declarations of hostility by witness admissible, subject to same rules as inconsistent statements: State v. Stew- art, 11 Or. 52; S. C, 11 Or. 238; State v. Mackey, 12 Or. 154. Defendant in criminal action offering himself as a witness may be cross-examined as to making contradictory statements, with a view to impeaching him: State v. Abrams, 11 Or. 169. Only the substance of the contradictory statements im- puted to a witness in the impeaching questions need be proved to impeach him: Id. Error to instruct jury to disregard " mere slight variances" between witnesses: State v. Swayze, 11 Or. 357. Whether or not witness came in obedience to subpoena, how far he traveled, and whether his fees were paid, Witnesses. 577 Witnesses (continued). are immaterial, and jury cannot form inference from such facts: Hurst v. Burnside, 12 Or. 520. Witness may, on cross-examination, be asked if he has ever been convicted of crime and confined in jail, and the record may also be introduced to prove the fact: State V. r,acon, 13 Or. 143. The friendship, relationship, and bias of a witness may be shown by cross-examination: Id. Subject to discretion of the court, a witness may be asked and required to answer any questions, however disgrace- ful, affecting his credibility, not criminating himself: Id. Examination for the purpose of disgracing a witness, and not to show his credibility, should not be allowed: Id. Witness may be asked if he has ever been arrested for crime: Id. In criminal case, any question which shows the hostility of the witness should be allowed on cross-examina- tion in favor of the defense: State v. Mah Jim, 13 Or. 235. Upon redirect examination of witness who acknowledged hostSity, the court permitted him to state the grounds of his hostility, against the objections of opposite party, but refused to allow the latter to disprove the matter so testified to; held, bad practice, but not error: Bagley v. Carpenter, 2 W. T. 19. 3. Examination. Writing must be submitted to witness for inspection be- fore examination as to its contents: State v. Taylor, 3 Or. 10. Error to exclude a witness from testifying because he was present during the examination of other witnesses, against the order of the court, unless it appears that the party was in complicity with him: Hubbard v. Hubbard, 7 Or. 12. But such witness may be fined for contempt: Id. Discretionary with court to permit party during cross- examination to ask witness questions not relating to his direct testimony, subject to rules of direct examination: Long and Spaur v. Lander, 10 Or. 175. Ok. Dig.— 37 578 Witnesses. Witnesses (continued). Use. of a diagram by a witness to locate and identify places and objects: Sheppard v. Yocum and De Lash- mutt, 10 Or. 402. Impeaching witness may be required on cross-examina- tion to give all the conversation in which the contra- dictory statements are said to have been made: State V. Abrams, 11 Or. 169. Witness may be asked on cross-examination if he told the attorneys what he would testify: Id. Mode of examining intimate acquaintance as to sanity of defendant in criminal case: State v. Murray, 11 Or, 413. In forgery case, witness for state, having testified that he did not sign the note, cannot be recalled by the state to write his name for comparison: State v. Lurch, 12 Or. 99. Defendant, witness for himself, may be cross-examined only as to matters testified to on direct examination: Id.; State v. Saunders, 14 Or. 300. So in forgery case, defendant cannot, on cross-examina- tion, be made to write his name or other names, not having testified to such matters on direct examination: Id. It is the duty of the court to interpose and keep cross- examination within reasonable bounds: State v. Bacon, 13 Or. 143. In capital cases, great latitude should be allowed in favor of the defense: State v. O'Neil, 13 Or. 183; State v. Mah Jim, 13 Or. 235. Counsel should be allowed to pursue their own course, so long as they keep within reasonable bounds: State v. Mah Jim, 13 Or. 235. Witness may translate document written in a foreign language, though not sworn as an interpreter: Krewson & Co. V. Purdom, 13 Or. 563. Parties cannot be excluded from the room during trial, under a statute giving court power to exclude witnesses: Schneider v. Haas, 14 Or. 174. Right to face witnesses in criminal case is not denied the defendant by admitting dying declarations, or docu- Writ of Error. 679 Witnesses (continued). mentary evidence of collateral facts: State v. Sau-aders, 14 Or. 300. Witness may refresh his memory ly reference to bill of particulars in his own handwriting: Williams & Co. v. Miller & Co., 1 W. T. 88. Defendant, testifying, subjects himself to the rules con- trolling the examination of other witnesses: Thompson V. Territory, 1 W. T. 547. Women. See Husband and Wife; Jury and Jury Trial. Writ of Error. See Appeal and Error* ■■'t^^ CITATIONS OF CASES REPORTED IN THE OEEGON, WASHINGTON, DEADY, AND SAWYER REPORTS. LIST OF CHARA.CTEIIS USED. ^ Approved. ^ Cited. ^ Denied. ^ Explained. ^ Followed. " Harmonized. ^ Limited. ^ Modified. ° Overruled. ^ Questioned or doubted. ^ Reversed. ^ Criticised. ^ Distinguished. S. C. Same case. ''h CITATIONS OF CASES REPORTED IN THE OEEGON, WASHINGTON, DEADY, AND SAWYER EEPOETS. Abercorn, The, 11 Saw. 530. ^Ex parte Hanson, 11 Saw. 662; Adams v. Burke, 3 Saw. 415. '^Wythe v. Haskell, 3 Saw. 578; ^Bear v. Luse, 6 Saw. 154, All Chong, In re, 6 Saw. 451. *^The Railroad Tax Case, 8 Saw. 286. Ah Fong, In re, 3 Saw. 144. *^Parrott's Chinese Case, 6 Saw. 379; ^The Railroad Tax Case, 8 Saw. 302. Ah Kee, In re, 10 Saw. 336. ^In re Look Tin Sing, 10 Saw. 353. Ah Kow V. Kunan, 5 Saw. 552. *^The Railroad Tax Case, 8 Saw. 302; ^In re Wo Lee, 11 Saw. 435. Ah Lee, In re, 6 Saw. 410. '''Burns v. Multnomah R. Co., 8 Saw. 552; ^In re Lee Tong, 9 Saw. 336; ^In re Wan Yin, 10 Saw. 538. Ah Lep V. Gong Choy, 13 Or. 205. ^Morgan v. Thompson, 13 ^ Or. 230. Ah Quan, In re, 10 Saw. 222. '^In re Chew Heong, 10 Saw. 374. Ah Yup, In re, 5 Saw. 155. *^In re Ah Chong, 6 Saw. 458; *^In re Camille, 6 Saw. 54. Aiken v. Ferry, 6 Saw. 79, *^Bear v. Luse, 6 Saw, 156; SShively V. Welch, 10 Saw. 141. Allen V. Hirsch, 8 Or. 412. ^Crawford v. Linn County, 11 Or. 498; ^Dundee etc. Co. v. School District, 10 Saw. 79. 584 Citations of Cases. Anderson v. Baxter, 4 Or. 105. ^Roberts v. Sutherlin, 4 Or. 222; cRenshaw v. Taylor, 7 Or. 321; ^Witherill v. Wiberg, 4 Saw. 236; ^Eubanks v. Leveridge, 4 Saw. 277; ^Semple V. Bank of British Columbia, 5 Saw. 101; *^Semple v. Bank etc., 5 Saw. 400. Anderson v. Ross, 2 Saw. 91. *^White v. McDonough, 3 Saw. 313. Andrus v. Knott, 12 Or. 501. ^Johnson v. Knott, 13 Or. 312. Ankeny v. Fairview Milling Co., 10 Or. 390. ^Kothenberthal V. City of Salem Co., 13 Or. 605. Ankeny v. Multnomah County, 3 Or. 386. ^S. C, 4 Or. 271; ^Wetmore v. Multnomah County, 6 Or. 464. Annie M. Smull, The, 2 Saw. 226. '-"State v. Sturgess, 9 Or. 540; ^State v. Sturgess, 10 Or. 61. Bachman v. Everding, 1 Saw. 70. ^Witherill v. Wiberg, 4 Saw. 233; ^Bank of British North America v. Ellis, 6 Saw. 98. Bailey v. Warren, 1 Or. 357. ''Ketchum v. State, 2 Or. 105. Baker v. Eghn, 11 Or. 333. ^Strong v. Kamm, 13 Or. i:8. Baker v. Portland, 5 Saw. 566. ^Parrott's Chinese Case, 6 Saw. 374. Baldro v. Tolmie, 1 Or. 176. ^Ketchum v. State, 2 Or. 106. Balfour v. Sullivan, 8 Saw. 648. ^Balfour v. Sullivan, 10 Saw. 104; ^Pascal v. Sullivan, 10 Saw. 285. Bamford v. Baraford, 4 Or. 30. ^Wetmore v. Wetmore, 5 Or. 472; ^Hall v. Hall, 9 Or. 456; ^Barrett v. Failing, 6 Saw. 475. Bajik of British America v. Page, 6 Or. 431. '^Singer S. M. Co. v. Graham, 8 Or. 21; ''Hacheny v. Leary, 12 Or. 46; *^Seni- ple V. Bank of British Columbia, 5 Saw. 90; '^Northwest- ern Ins. Co. V. Elliott, 7 Saw. 21. Bank of British North America v. Ellis, 6 Saw. 96. ^Peyser V. Cole, 11 Or. 45; ^P. R. M. Co. v. D. S. & G. R. R. Co., 7 Saw. 68; '^Burns v. Scoggin, 10 Saw. 75. Barrett v. Failing, 6 Saw. 473. ^Ilall v. Hall, 9 Or. 456. Barrett v. Failing, 8 Or. 152. ^Neil v. Tolman, 12 Or. 295; *^Glenn v. Savage, 14 Or. 574. Bartel v. Lope, 6 Or. 321. ^Lr^dd v. Mason, 10 Or. 318. Beadle, In re, 5 Saw. 351. «^In re Estes, 6 Saw. 462. Beacannon v. Liebe, 11 Or. 443. ^Burrage v. B. G. & Q. M. Co., 12 Or. 172. Citations of Cases. 585 Beqnct v. People's Transportation Co., 2 Or. 200. '"Holstine V. O. & C. R. R. Co., 8 Or. 109. Bennett v. Bennett, 1 Deady, 290. "Keyes v. Llooney, 13 Or. 182. Besser v. Hawthorne, 3 Or. 129. ^S. C, 3 Or. 512; ^De Lash- mutt V. Scllwood, 10 Or. 326. Bird V. Wasco County, 3 Or. 282. ^Dolan v. Barnard, 5 Or. 393. Bissell V. Henshaw, 1 Saw. 553. ^S. C, 18 Wall. 268; ^Leroy V. Carroll, 3 Saw. 68; <^Mora v. Nunez, 7 Saw. 464; ^S. P. R. R. Co. V. Dull, 10 Saw. 516. Blanchard v. Bennett, 1 Or. 329. ^Schirott v. Pliillippi, 3 Or. 486; oRamsey v. Pettengill, 14 Or. 208. Board of Commissioners v. Babcock, 5 Or. 472. ^Nicklin v. Betts Spring Co., 11 Or. 411. Boehreinger v. Creighton, 10 Or. 42. TBloomfield v. Huma- son, 11 Or. 233. Bogart, In re, 2 Saw. 396. ^In re White, 10 Saw. 51. Bohlraan v. Coffin, 4 Or. 313. ^Carter v. Portland, 4 Or. 350; '^Musgrove v. Bonser, 5 Or. 317; ^Baker v. Woodward, 1^ Or. 9; ^Goodenough v. Warren, 5 Saw. 501. Boire v. McGinn, 8 Or. 466. ^Bloomfield v. Buchanan, 14 Or. 183. Bowas V. Pioneer Tow Line. 2 Saw. 21. *^The Chandos, 6 Saw. 548. Bowen v. State, 1 Or. 270. ^State v. Wilson, 6 Or. 429. Bowles V. Doble, 11 Or. 474. ^ Wells v. Applegate, 12 Or. 209. Boyd, In re, 4 Saw. 262. ^Creighton v. Leeds, 9 Or. 220; ^In re Estes, 6 Saw. 467. Boyer v. Fowler, 1 W. T. 101. ^Mcigs v. Keach, 1 W. T. 305. Branson v. Oregonian R'y Co., 10 Or. 278. ^Branson v. Orego- ^ nian R'y Co., 11 Or. 163. Breon v. lienkle, 14 Or. 494. ^Glenn v. Savage, 14 Or. 576. Brown v. Brown, 7 Or. 285. ^lleirs of Clark v. Ellis, 9 Or. 131. Brown Bros. v. Pepin, 1 W. T. 205. ^Clarke Co. v. Commis- sioners, 1 W. T. 252. Brummet v. Weaver, 2 Or. 168. ^Lemon v. Waterman, 2 W. T. 491. Brugger v. State Livestment Ins. Ca, 5 Saw. 304. '^Herbert v. 586 Citations op Cases. Mutual Life Ins. Co., 8 Saw. 200; ^Spa,re v. Home Mutual Ins. Co., 9 Saw. 148; ^Durham v. Fire and Marine Ins. Co., 10 Saw. 529. Bryant, In re, 1 Deady, 118. ^Ex parte Sanson, 11 Saw. 632. Buckley v. Gould & Curry S. M. Co., 8 Saw. 394. ^Bunt v. Sierra Buttes G. M. Co., 11 Saw. 181. Bullene v. Garrison, 1 W. T. 587. ^Page v. Rodney, 2 W. T. 463. Burch V. Earhart, 7 Or. 58. ^State v. Brown, 10 Or. 223. Burchard v. State of Oregon, 2 Or. 78. ^East Portland v. Multnomah County, 6 Or. 64. , Burkhart v. Howard, 14 Or. 39. ^Gee v. McMillan, 14 Or. 275. Burke v. Flood, 6 Saw. 220. ^Dannmeyer v. CoLeman, 8 Saw. 58;, ^Bell v. Donohoe, 8 Saw. 437 Burnett v. Douglas County, 4 Or. 388. ^Canyonville & G. Road Co. V. Douglas County, 5 Or. 283. Burns v. Multnomah R'y Co., 8 Saw. 553. ^Hughes v. N. P. R. R. Co., 9 Saw. 322. Burns v. Scoggin, 9 Saw. 73. ^Balfour v. Davis, 14 Or. 54. Bybee v. Hawkett, 6 Saw. 593. ^Hughes v. N. P. R. R. Co., 9 Saw. 318. Cahn V. Barnes, 7 Saw. 48. <^Miller v. Tobin, 9 Saw. 410. California, The, 1 Saw. 596. '^In re, St. Helen Mill Co., 3 Saw. 92. California, The, 1 Saw. 463. ^Holmes v. Or. & Cal. R. R. Co., 6 Saw. 272; ^The Glenearne, 7 Saw. 202; ^The Whistler, 8 Saw. 235; «Neil v. Wilson, 14 Or. 413. Campbell v. Bridwell, 5 Or. 311. ^French v. Cresswell, 13 Or. 422. Canada, The, 7 Saw. 173. ^City of Salem, 7 Saw. 479. Canyon Road Co. v. Lawrence, 3 Or. 519. ^State v. McKin- non, 8 Or. 486; '^Odell v. Gotfrey, 13 Or. 469. Canyonville & G. Road Co. v. Douglas County, 5 Or. 280. ^Douglas Road Co. v. Douglas County, 5 Or. 409. Canyonville & G. Road Co. v. Stephenson, 8 Or. 263. ^State V. Douglas County Road Co., 10 Or. 192. Cardwell v. The American River Bridge Co., 9 Saw. 662. ^'Scheerer v. Coiumbia St. Bridge Co., 11 Saw. 577. Carr, In re, 3 Saw. 316. ^Vaters v. Campbell, 5 Saw. 21; ''Kie V. United States, 11 Saw. 581. Citations of Cases. 587 Carney v. Barrett, 4 Or. 471. ^Coyote G. & S. M. Co. v. Ruble, 9 Or. 122. Cason V. Stone, 1 Or. 39. ^Drewv. Gant, 1 Or. 199; ^Beckley V. Learn, 3 Or. 471. Carter v. Portland, 4 Or. 339. ^Douglas County Road Co. v. Abraham, 5 Or. 321, Carter, Rice, & Co. v. Koshland, 12 Or. 492. '"Carter, Rice, & Co. V. Koshland, 13 Or. 615. Carter v. Chapman, 2 Or. 93. ^Frarey v. Wheeler, 4 Or. 197; ^Fields V. Squires, 1 Deady, 366; *^Shockley v. Brown, 1 W. T. 466. Carter v. Baker, 1 Saw. 512. ^Fisher v. Craig, 3 Saw. 73. Cartwright v. Savage, 5 Or. 397. ^Bank of British Columbia V. Harlow, 9 Or. 341. Catlin V. Currier, 1 Saw. 7. ^In re, Morrill, 2 Saw. 361. Catlin V. Hoffman, 2 Saw. 291. ^United States v. Griswold,. 7 Saw. 304. Central Pacific R. R. Co. v. Dyer, 1 Saw. 641. ^Gillespie v. Cummings, 3 Saw. 260; '^Southern Pacific R. R. Co. v. Orton, 6 Saw. 198; ^Sanger v. Sargent, 8 Saw. 94; ^'S. P. R. R. Co. V. Dull, 10 Saw. 512; <^Wells, Fargo, & Co. v. Miner, 11 Saw. 285. Chambers v. Chambers, 4 Or. 153. *^Proebstel v. Ilogue, 8. Saw. 597. Chandos, The, 6 Saw. 544. ^The Clatsop Chief, 7 Saw. 279. Chapman v. Ferry, 8 Saw. 191. ^S. C, 9 Saw. 395. Chapman v. School District No. 1, 1 Deady, 108. ^Dolph v. Barney, 5 Or. 202; ^Chapman v. School District No. 1, 1 Deady, 140; ^Fields v. Squires, 1 Deady, 398; ^Lamb v. Davenport, 1 Saw. 632; ^Fitzpatrick v. Dubois, 2 Saw- 438; nVythe v. Haskell, 3 Saw. 578; ^Dowell v. Card- ^ well, 4 Saw. 230; "-Bear v. Luse, 6 Saw. 154; ^Sanger v. Sargent, 8 Saw. 95; ^Myers v. Reed, 9 Saw. 139. Chapman v. State, 5 Or. 432. ^Case T. M. Co. v. Campbell, 14 Or. 465. Chapman v. Toy Long, 4 Saw. 28. '^United States v. Nelson, 5 Saw. 71; *^Bakcr v. Portland, 5 Saw. 571. * Chavener v. Wood, 2 Or. 162. ^Lauriat v. Stratton, 6 Saw. 842. Chin Ah Sooey, In re, 10 Saw. 277. ^In re Ah Kee, 10 Saw. 344. 588 Citations of Cases. Chow Goo Pool, 9 Saw. 606. ^In re All Kee, 10 Saw. 844. Christian v. Evans, 5 Or. 253. ^Luse v. Luse, 9 Or. 149; ^Broback v. Huff, 11 Or. 395; ^Lancaster v. McI>onald, 14 Or. 266. Clark V. Bayley, 5 Or. 343. ^Springer v. Young, 14 Or. 289. Chne V. Broy, 1 Or. 89. SState v. Fitzhugh, 2 Or. 236. Cogswell V. Wilson, 11 Or. 371. ^Bloomfield v. Buchanan, 13 Or. 114. Coleman v. Stark, 1 Or. 115. ^Wilson v. McEwen, 7 Or. 105. Coleman v. Yesler, 1 W. T. 591. ^Seattle & C. R. R. v. Ah Kow, 2 W. T. 39; ^Parker v. Denny, 2 W. T. 361. Cole Silver M. Co. v. V. & G. H. W. Co., 1 Saw. 470. ^Portland V. Oregonian R'y Co., 7 Saw. 126; ^Hatch v. W. I. Bridge Co., 7 Saw. 140; ^Bell v. Donohoe, 8 Saw. 437; ^Hass v. Sedlak, 9 Or. 464. Columbus, The Schooner, 5 Saw. 487. ^Steamboat S. M. Whip- ple, 7 Saw. 72. Comstock, In re, 3 Saw. 218. ^Bank of British Columbia v. Page, 6 Or. 436; ''Semple v. Bank of British Columbia, 5 Saw. 90; ''N. W. Ins. Co. v. Elliott, 7 Saw. 19; ^Orapige National Bank v. Traver, 7 Saw. 212; ^Spare v. Home Mutual Insurance Co., 8 Saw. 624; ^Oregonian Railway Co. V. 0. R. & N. Co., 10 Saw. 479. Comstock, In re, 3 Saw. 128. ^In re Oregon Bulletin Chie V. Lindsay, 8 Or. 474. ^Besser v. Joyce, 9 Or. 316; "O'Leary v. Fargher, 11 Or. 225. Farnum v. Loomis, 2 Or. 29. ^Whiteaker v. Vanschoiack, 5 Or. 118; '^Snider v. Lehnherr, 5 Or. 388. Fassman v. Bauragartner, 3 Or. 469. ^State v. McKinnon, 8 Or. 486. Favorite, The, 3 Saw. 405. ^The Canada, 7 Saw. 187. Felger v. Robinson, 3 Or. 455. ^Shaw v. Oswego Iron Co., 10 Or. 382. 592 Citations of Cases. Fideliter, The, v. United States, 1 Saw. 153. tDowell v. Port- land, 13 Or. 267. Field V. Columbet, 4 Saw. 523. ^Lambert v. Smith, 9 Or. 191. Fields V. Lamb, 1 Deady, 430. ^Goodenough v. Warren, 5 Saw. 497. Field V. Lownsdale, 1 Deady, 288. ^Fields v. Lamb, 1 Deady, 431; ^Goodenough v. Warren, 5 Saw. 497; ^Mining De- bris Case, 8 Saw. 639; ^N. P. T. Co. v. Lowenberg, 9 Saw. 353; ^Goldsmith v. Gilliland, 10 Saw. 619. Fields V. Squires, 1 Deady, 366. ^Lamb v. Starr, 1 Deady, 452; "^Lambv. Wakefield, 1 Saw. 256; *^Mizner v. Vaughn, 2 Saw. 273; '^Fitzpatrick v. Dubois, 2 Saw. 439; ^Hall v. Russell, 3 Saw. 513; ^Wythe v. Haskell, 3 Saw. 578; ^Wythe V. Smith, 4 Saw. 26; *^Semple v. Bank of British Columbia, 5 Saw. 398; *^ Alexander v. Knox, 6 Saw. 57; *^Stevens v. Sharp, 6 Saw. 117; *^Bear v. Luse, 6 Saw. 154; ^United States v. Tichenor, 8 Saw. 149; ^Traver v. Tribou, 8 Saw. 516; '-Shively v. Welch, 10 Saw. 143. Fink V. Canyon Road Co., 5 Or. 301. ^Luse v. Isthmus Tran- sit R. R. Co., 6 Or. 131; ^Philomath College v. Hartless, 6 Or. 162. Finley v. Page, 8 Or. 45. ^State v. Clark, 9 Or. 469. Fisk V. Henarie, 13 Or. 156. ^S. C, 14 Or. 32. Fitzpatrick v. Dubois, 2 Saw. 434. ^Ramsey v. Loomis, 6 Or. 378. Fleischner v. Chadwick, 5 Or. 152. ^Grant County v. Sels, 5 Or. 246; ''Dolan v. Barnard, 5 Or. 393; <=The Glaramara, 8 Saw. 27; ^Stingle v. Nevel, 9 Or. 63; ^Mayer v. Caha- lin, 5 Saw. 358. Ford V. Kennedy, 1 Or. 166. ^White v. Allen, 3 Or. Ill; ^■Newton v. Spencer, 3 Or. 548; ^Lamb v. Starr, 1 Deady, 361; ^Fields v. Squires, 1 Deady, 376; ^Dalles City v. Missionary Society, 6 Saw. 141. Fordice v. Rinehart,ll Or. 208. ^Prescott v. Heilner, 13 Or. 202; ^Guille v. Wong Fook, 13 Or. 585. Frary v. Wheeler, 4 Or. 190. ^Ha ;s v. Sedlak, 9 Or. 465. French v. Edwards, 4 Saw. 125. ^Elliott v. Teal, 5 Saw. 190. Frush V. East Portland, 6 Or. 281. ^N. P. L. & M. Co. v. East Portland, 14 Or. 7. Citations of Cases. 593 Gager v. Henry, 5 Saw. 237. ^Holmes v. 0. & C. R. R. Co., 6 Saw. 285; ^Sprigg v. Stump, 7 Saw. 292; '^Goldsmith v. Gilliland, 10 Saw. 613; <^Wright v. Edwards, 10 Or. 303; *^Walker v. Goldsmith, 14 Or. 143. Galpin v. Page, 3 Saw. 93. ^S. C, 18 Wall. 350; ^Odell v. Campbell, 9 Or. 300; ^Northcut v. Lemery, 8 Or. 323;. '^Severns v. Gerke, 3 Saw. 366. Gammons v. Holman, 11 Or. 284. ^Kahn v. Salmon, 10 Saw.. - 193. ^ Gant V. Drew, 1 Or. 35. ^Mills v. Learn, 2 Or. 215; ^Becklejr V. Learn, 3 Or. 545. Garrett v. Clark, 5 Or. 464. ^Williams v. Ackerman, 8 Or, 406. Garrison v. Portland, 2 Or. 123. '^Portland v. Kamm, 5 Or. 368. Giant Powder Co. v. California V. P. Co., 6 Saw. 508; ^Giant P. Co. V. Nitro P. Co., 10 Saw. 24. Glaze V. Whitely, 5 Or. 164. «Sheppard v. Yocum, 10 Or. 413. Glenearne, The, 7 Saw. 200. ^The Glaramara, 8 Saw. 24; ^Neil V. Wilson, 14 Or. 413; ^The Abercorn, 11 Saw. 531. Goodall V. State, 1 Or. 333. 'State v. Doty, 5 Or. 495; ^State V. Whitney, 7 Or. 392. Goodenough v. Warren, 5 Saw. 494. '^The Mining Debris Case, 8 Saw. 638; ^Manaudas v. Mann, 14 Or. 452. Goodman v. Myrick, 5 Or. 65. ^Weiss v. Oregon Iron and Steel Co., 13 Or. 497. Goodwin v. Morris, 9 Or. 322. ^Parker v. :Metzger, 12 Or. 409.. Gove V. Moses, 1 W. T. 9. ^Page v. Rodney, 2 W. T. 463. Grangers' Market Co. v. Vinson, 6 Or. 172. ^Coyote G. & S. M. Co. V. Ruble, 8 Or. 297; ^Kelly v. Ruble, 11 Or. 105. Grant v. Baker, 12 Or. 329. *^Scott v. 0. R. & N. Co., 14 Or. ^ 221. Grant County v. Sels, 5 Or. 243. 'Dolan v. Barnard, 5 Or. 393; ^Stingle v. Nevel, 9 Or. 63; ^State v. Brown, 10 Or. 226; ^Mayer v. Cahalin, 5 Saw. 358; ''The Glaramara, 8 Saw. 27. Griswold v. Stoughton, 2 Or. 61; ''Dolph v. Barney, 5 Or. 211; ^Bank of British Columbia v. Page, 7 Or. 455. Groslouis v. Northcut, 3 Or. 394. '^Northcut v. Lemery, 8 Or. 319. Or. Dig.— 38 694 Citations of Cases. Hackett v. Wilson, 12 Or. 25. ^Hackett v. Multnomah R'y Co., 12 Or. 127. Hall V. Austin, 1 Deady, 104. ^Bank of British North Amer- ica V. Ellis, 6 Saw. 98. Hall V. Russell, 3 Saw. 506. ^S. C, 111 U. S. 503; «Farris v. Hayes, 9 Or. 83; ^Town v. De Haven, 5 Saw. 154; ^Man- ning V. Hayden, 5 Saw. 379; ^Stevens v. Sharp, 6 Saw. 115; ^Stubblefield v. Menzies, 8 Saw. 43; ^United States V. Tichenor, 8 Saw. 149; ^Traver v. Tribou, 8 Saw. 515; ^Hickox V. Elliott, 10 Saw. 423. Hall V. linger, 4 Saw. 672. '^Parkhurst v. Hosford, 10 Saw. 411. Hallock V. City of Portland, 8 Or. 29. ^State v. Mackey, 12 Or. 156; ^Kearney v. Snodgrass, 12 Or. 315. Halverston v. Nisen, 3 Saw. 562. ^The Chandos, 6 Saw. 548. Hanson v. Fowle, 1 Saw. 539. <^The Oriflamme, 3 Saw. 404. Harker v. Fahie, 2 Or. 89. ^White v. Northwest Stage Co., 5 Or. 102. Harris v. Miller, 6 Saw. 319. ^Ye Seng Co. v. Corbett, 7 Saw. 375. Hartigan v. Territory, 1 W. T. 447. ^Leonard v. Territory, 2 W. T. 395. Hatch V. Wallamet Iron Bridge Co., 7 Saw. 127. '^Hughes V. N. P. R. R. Co., 9 Saw. 319; ^Mining Debris Case, 9 Saw. 516; see W. I. B. Co. v. Hatch, 9 Saw. 643; ^Card- well V. American R. Bridge Co., 9 Saw. 663; ^Scheerer v. Columbia St. Bridge Co., 11 Saw. 577. Hatcher v. Briggs, 6 Or. 31. ^Walker v. Goldsmith, 14 Or. 141. Hawes v. Costa Rica Water Co., 5 Saw. 287; ^^Reclamation Dist. V. Hager, 6 Saw. 570. Hayner v. Stanly, 8 Saw. 214. ^Pac. Coast M. & M. Co. v. Spargo, 8 Saw. 647. Heath v. GHsan, 3 Or. 64. ^Boydston v. Giltner, 3 Or. 124. Heathcrly v. Hadley, 2 Or. 269. See 4 Or. 1; ^Wythe v. City of Salem, 4 Saw. 89. Heatherly v. Hadley, 4 Or. 1. ^Murray v. Murray, 6 Or. 24; ^Northcut V. Lemery, 8 Or. 322; ^Walker v. Goldsmith, 14 Or. 142. Hedges v. Strong, 3 Or. 18. ^Ludwick v. Watson, 3 Or. 257; ^Taylor v. Patterson, 5 Or. 124. Citations of Cases. 595 Hendrix v. Gore, 8 Or. 409. •'Nicklin v. Betts Spring Co., 11 Or. 411. Hiawatha, The, 5 Saw. 160. ^The Canada, 7 Saw. 188. Hickox V. Elliott, 10 Saw. 415. ^Hickox v. Elliott, 11 Saw. 628. Hill V. Cooper, 6 Or. 181. <^Starr v. Stark, 7 Or. 510. Hill V. Cooi>er, 8 Or. 254. "Hill v. Cooper, 10 Or. 153. Hills V. Homton, 4 Saw. 195. ^McFadden v. Robinson, 10 • Saw. 400; ^Veiss v. Oregon Iron and Steel Co., 13 Or. 497. Hinman v. Warren, 6 Or. 408. <^Parker v. Taylor, 7 Or. 408. Hobart v. Upton, 2 Saw. 302. ^Goldsmith v. Gilliland, 10 Saw. 613. Hodges V. Silver Hill Mining Co., 9 Or. 200. ^Brundage v. Mon. G. & S. M. Co., 12 Or. 324; »Dawson v. CofiFey, 12 Or. 519; ''Dawson v. Sims, 14 Or. 563; ^Hickox v. Elliott, 11 Saw. 646. Hogan V. Wyman, 2 Or. 302. ^Brown v. Brown, 7 Or. 299. Holcomb V. Teal, 4 Or. 352; "Alberson v. Mahaffey, 6 Or. 413; •'State v. McKinmore, 8 Or. 208; ''Pencinse v. Bur- ton, 9 Or. 179; ^Ah Lep v. Gong Choy, 13 Or. 209. Holladay v. Patterson, 5 Or. 177. "0. & C. R. R. Co. v. Potter, 5 Or. 231. Holmes v. Holmes, 1 Saw. 99. ^King v. French, 2 Saw. 446. Holmes v. 0. & C. R. R. Co., 6 Saw. 262. ''The Clatsop Chief, 7 Saw. 279; ^Conroy v. Oregon Con. Co., 10 Saw. 632. Holmes v. 0. & C. R. R. Co., 7 Saw. 380. ^Wright v. Ed- wards, 10 Or. 303. Hopwood V. Patterson, 2 Or. 49. ''Oregon Central R. R. Co. V. Wait, 3 Or. 95; '-Derkeny v. Belfils, 4 Or. 259; ^Oregon Central R. R. Co. v. Scoggin, 3 Or. 162; ^Wythe v. Myers, 3 Saw. 600; ^Oregonian R'y Co. v. 0. R. & N. ^ Co., 10 Saw. 469. Horrell v. Manning, 6 Or. 416. ^Nicolai v. Lyon, 8 Or. 58. Howe V. Douglas Co., 3 Or. 488. ^^Coleman v. Ross, 14 Or. 351. Howe V. Taylor, 6 Or. 284. "Howe v. Taylor, 9 Or. 291; ^Williams V. Gallick, 11 Or. 342. Howell V. State, 1 Or. 241. ^State v. Fitzhugh, 2 Or. 236. Hoxter v. Poppleton, 9 Or. 481. '^Peterson v. Foss, 12 Or. 82; ^Hexter v. Schneider, 14 Or. 187; ^'Crane v. Runey, 11 Saw. 420. 596 Citations of Cases. Hubbard v. Hubbard, 7 Or. 42. ^Heirs of Clark v. Ellis, 9 Or. 133. Hughes V. Northern Pacific R. R. Co., 9 Saw. 319. ^Miller v. Wattier, 11 Saw. 82. Humphreys v. Taylor, 5 Or. 260. '^ Aiken v. Aiken, 12 Or. 206. Huntington v. Central Pac. R. R. Co., 2 Saw. 503. ^Tilton v. 0. C. M. R. Co., 3 Saw. 24; ^Minturn v. Smith, 3 Saw. 144. Huntington v. Palmer, 7 Saw. 355. "^Dundee Mortgage etc. Co. V. Parrish, 11 Saw. 335. Hurst V. Burnside, 12 Or. 520. ^Cassida v. Oregon R'y & Nav. Co., 14 Or. 558. Hurst V. Hawn, 5 Or. 275. ''Grant County v. Sels, 5 Or. 246; ^Mayer v. Cahalin, 5 Saw. 358. Ison, In re, Claim of, 6 Or. 465. ^Hazard's Appeal, 9 Or. 367. Jackson v. Siglin, 10 Or. 93. *^Coleman v. Ross, 14 Or. 351. Jacobs V. Ervin, 9 Or. 52. '^Kahn v. Salmon, 10 Saw. 193; ^Bremer v. Fleckenstein, 9 Or. 273. Jacobs V. McCalley, 8 Or. 124. ^Jacobs v. Ervin, 9 Or. 56; ^Bremer v. Fleckenstein, 9 Or. 273; ''Sears v. Abrams, 10 Or. 503. Jettie V. Picard, 4 Or. 296. ^Coulson v. Holmes, 5 Saw. 281. Johns V. Marion County, 4 Or. 46. ^State v. Officer, 4 Or. 183; ^Fustin V. Gaunt, 4 Or. 307; ^Canyonville & G. Road Co. V. Douglas County, 5 Or. 285; ^Monastes v. Catlin, 6 Or. 121. Johnson v. City Council of Oregon City, 2 Or. 327. S. C, 3 Or. 13; lAnkeny v. Multnomah County, 3 Or. 386; ^An- keny v. Multnomah County, 3 Or. 388; "^Ankeny v. Mult- nomah County, 4 Or. 277. Jones V. Dove, 6 Or. 188. ^Hubbard v. Hubbard, 7 Or. 44; ^Jones v. Dove, 7 Or. 471; ^Heirs of Clark v. Ellis, 9 Or. 132. Jones V. Oregon Central R'y Co., 3 Saw. 523. *^Heirs of Clark V. Ellis, 9 Or. 134. Jupiter Mining Co. v. Bodie Con. M. Co., 7 Saw. 96. ^Lakin V. Buttes G. M. Co., 11 Saw. 241. Kahn v. Salmon, 10 Saw. 196. ^Dawson v. Sims, 14 Or. 563. Kamm v. Holland, 2 Or. 59. ^Barr v. Mitchell, 7 Or. 354. Citations of Cases. 597 Kamm v. Stark, 1 Saw. 547. ^Bush v. United States, 8 Saw. 327. Kearney v. Snodgrass, 12 Or. 311. ''State v. Becker, 12 Or. 319; ^Breon v. Ilenklc, 14 Or. 514. Keith V. Cheney, 1 Or. 285. ^Willamette County v. Gordon, 6 Or. 177. Kelly V. Ruble, 11 Or. 75. ^Gee v. McMillan, 14 Or. 275. Kennedy v. Sacramento, 10 Saw. 29. *^IIaumeister v. Porter, 10 Saw. 281. Kielley v. Belcher Silver M. Co., 3 Saw. 500. ^Buckley v. Gould and Curry S. M. Co., 8 Saw. 400; ^Bunt v. Sierra Butte.s Gold Mining Co., 11 Saw. 181. Kirk V. Matlock, 12 Or. 319. ^Moorhouse v. Donica, 14 Or. 439. Knaresborough v. Belcher S. M. Co., 3 Saw. 446. ""Conroy v. Oregon Construction Co., 10 Saw. 632. Knott V. Frush, 2 Or. 237. ^Beckley v. Learn, 3 Or. 546; ^Montgomery v. Multnomah R'y Co., 11 Or. 353; «Hack- ett V. Wilson, 12 Or. 37. Knott V. Shaw, 5 Or. 482. ^State v. Munds, 7 Or. 82. Knowles v. Herbert, 11 Or. 54, S. C, 11 Or. 240; ^Williams V. Gallick, 11 Or. 339; ^Case T. M. Co. v. Campbell, 14 Or. 465. Knox V. Great Western Q. M. Co., 3 Saw. 422. ^S. C, 6 Saw. 439. Koch V. The Oriflamme, 3 Saw. 397. ^Plielps v. City of Panama, 1 W. T. 535. Ladd V. Cartwright, 7 Or. 329. ^Hodges v. Silver Hill M. Co., 9 Or. 202; ^Brundage v. Mon. G. & S. M. Co., 12 Or. 324; *Faull V. Alaska G. & S. M. Co., 8 Saw. 423. Ladd V. Iligley, 5 Or. 296. ^Northcut v. Lemery, 8 Or. 322. Xadd V. Mason, 10 Or. 308. <^Hovenden v. Knott, 12 Or. 269. Lafayette v. Clark, 9 Or. 225. ^Corvallis v. Stock, 12 Or. 391. Lamb V. Burbank, 1 Saw. 227. "^Lamb v. Kamm, 1 Saw. 242; ^Lamb v. Wakefield, 1 Saw. 258; ^Traver v. Baker, 8 Saw. 541. Lamb v. Davenport, 1 Saw. 609. S. C, 13 Wall. 317; ^Dolph 'v. Barney, 5 Or. 202; ^Parker v. Rogers, 8 Or. 188; ^Wil- son V. Shively, 10 Or. 269; ^Lamb v. Vaughn, 2 Saw. 165; JStarr v. Stark, 2 Saw. 637; ^Meeks v. Vassault, 3 598 Citations of Cases. Saw. 217; ^Wythe v. Haskell, 3 Saw. 578; <^Semple v. Bank, 5 Saw. 398; '^Cutting v. Cutting, 6 Saw. 404; ^San- ger V. Sargent, 8 Saw. 94; ^Traver v. Tribou, 8 Saw. 516; ^Proebstel v. Hogue, 8 Saw. 597; ^Mining Debris Case, 9 Saw. 533. Lamb v. Kamm, 1 Saw. 238. ^Traver v. Baker, 8 Saw. 538. Lamb v. Starr, 1 Deady, 350. *^Taylor v. Patterson, 5 Or. 124; ^Fields V. Squires, 1 Deady, 376; ^Newley v. Oregon Cent. R. R. Co., 1 Saw. 67; ^'Mizner v. Vaughn, 2 Saw. 273; *^Wythe V. Haskell, 3 Saw. 578; ^'Semple v. Bank of British Columbia, 5 Saw. 398; ^'Stevens v. Sharp, 6 Saw. 117; <^Cutting V. Cutting, 6 Saw. 404; <^United States v. Tich- enor, 8 Saw. 149; *^Green v. Coos Bay Wagon R. Co., 10 Saw. 629. Lamb v. Wakefield, 1 Saw. 251. ^'Semple, v. Bank of British Columbia, 5 Saw. 398; Traver v. Tribou, 8 Saw. 540. Latshaw v. Territory of Oregon, 1 Or. 140. ^Smith v. United States, 1 W. T. 273. Laundry Ordinance Case, 7 Saw. 526. ^In re Wan Yin, 10 Saw. 536; *In re Wo Lee, 11 Saw. 429. Lee V. Summers, 2 Or. 260. ''Blakesley v. Caywood, 4 Or. 288; ^Dolph v. Barney, 5 Or. 201. Lee Tong, In re, 9 Saw. 333. ''In re W\an Yin, 10 Saw. 538; ^Ex parte Ah Lit, 11 Saw. 448; ^Ex parte Hanson, 11 Saw. 661. Leong Yick Dew, In re, 10 Saw. 38. *^Ah Quan, In re, 10 Saw. 22; ^In re Chew Heong, 10 Saw. 376. Leroy v. Jamison, 3 Saw. 369. ^ Wythe v. Haskell, 3 Saw. 578. Leschi v. Territory, 1 W. T. 13. ^Shapoonmash v. United States, 1 W. T. 191; <^Lytle v. Territory, 1 W. T. 444. Lewis V. Lewis, 4 Or. 177. ^Raymond v. Coffee, 5 Or. 135; '^Ramsey v. Loomis, 6 Or. 374; ^ Weiss v. Oregon Iron and Steel Co., 13 Or. 497. Lewis V. Lewis, 4 Or. 209. ''Christian v. Evans, 5 Or. 254; ^ Weiss V. Jackson County, 8 Or. 529; ^Neppach v. Jor- dan, 13 Or. 247; ^Lancaster v. McDonald, 14 Or. 266. Liebman v. San Francisco, 11 Saw. 147. *^Rosenbaum v. Board of Supervisors, 11 Saw. 621. Lindley v. Wallis, 2 Or. 203. ''Can v. Hurd, 3 Or. 160; ^See- Citations of Cases. 599 ley V. Sebastian, 3 Or. 565; ''Rees v. Rees, 7 Or. 80; ^Pop- pleton V. Nelson, 10 Or. 439. Live Yankee, The, 1 Deady, 420. ^The Oriflamme, 1 Saw. 181. Long V. Sharp, 5 Or. 438. ^State v. McKinnon, 8 Or. 44G. Lord V. Brown, 7 Or. 302. nVagonblast v. Whitney, 12 Or. 89. Lord V. Goodall, 4 Saw. 292. '^Armstrong v. Beadle, 5 Saw. 487. Love V. Love, 8 Or. 23. ^Farris v. Hayes, 9 Or. 83. Lownsdale v. Portland, 1 Or. 381. S. C, 1 Deady, 1; <=IIall v. Austin, 1 Deady, 107; ^Chapman v. School District, 1 Deady, 112; ^Chapman v. School District, 1 Deady, 1G3; ^Stark v. Starr, 1 Saw. 17; ^Lamb v. Davenport, 1 Saw. 620; ^Town v. De Haven, 5 Saw. 149; ^Dalles City v. Missionary Society, 6 Saw. 141; ^Bear v. Luse, 6 Saw. 154; ^United States v. Tichenor, 8 Saw. 151; ^Myers v. Reed, 9 Saw. 139; ^Shively v. Welch, 10 Saw. 143; ^Cof- fin V. Portland, 11 Saw. 607. Low Yam Chow, In re, 7 Saw. 546. ^In re George Moncan, 8 Saw. 354; ^In re Ho King, 8 Saw. 447. Luhrs V. Sturtevant, 10 Or. 170. ^ Walts v. Foster, 12 Or. 249. Luse V. Luse, 9 Or. 149. ^Lancaster v. McDonald, 14 Or. 266. Mack v. Salem, 6 Or. 275. ^Heilner v. Union County, 7 Or. 65. MacNaughton v. South Pacific Coast R. R. Co., 10 Saw. 111. '^Endey v. Commercial Fire Insurance Co., 11 Saw. 139; ^Theurkauf V. Ireland, 11 Saw. 513. Mahoney Mining Co. v. Bennett, 4 Saw. 289. ^C. & S. Bank etc. V. Corbett, 5 Saw. 174; ^Portland v. Oregonian R'y Co., 7 Saw. 124. Mallory, In re, 1 Saw. 88. ^Catlin v. Hoffman, 2 Fvaw. 493. JSIanning v. Ilayden, 5 Saw. 360. ^Stevens v. Sharp, 6 Saw. 115; ^Traver v. Tribou, 8 Saw. 515; ^Hickox v. Elliott, 10 Saw. 423; '^Lakin v. Sierra Buttes G. M. Co., 11 Saw. 243. Manning v. Klippel, 9 Or. 367. ^Lane v. Coos County, 10 Or. 124; 'Crawford v. Linn County, 11 Or. 498; ^Dundee etc. Co. v. School District, 10 Saw. 69. Planning v. Montgomery, 1 W. T. 434. ''Garrison v. Cheeney, 1 W. T. 493. 600 Citations of Cases. Manning v. San Jacinto Tin Co., 7 Saw. 418. ^Dannemeyer V. Coleman, 8 Saw. 58; ^United States v. White, 9 Saw. 127; ^Pratt v. California Mining Co., 9 Saw. 367; ^United States V. San Jacinto Tin Co., 10 Saw. 641. Mariposa County v. Bowman, 1 Deady, 228. ^Hendy v. Soule, 1 Deady, 403. Marlin v. T'Vault, 1 Or. 77. ^Lamb v. Davenport, 1 Saw. 620. Marsh v. Trullinger, 6 Or. 356. ^Ankeny v. Fairview M. Co., 10 Or. 401. Matthews v. Eddy, 4 Or. 225. ^Ramsey v. Loorais, 6 Or. 374; ^McRae v. Daviner, 8 Or. 65. Mayer v. Cahalin, 5 Saw. 355. ^The Glaramara, 8 Saw. 27. McCalla v. Multnomah County, 3 Or. 424. ^Sheridan v. Salem, 14 Or. 334. McCormick v. Walla Walla & Columbia -R. R. Co., 1 W. T. 512. '^N. P. R. R. Co. V. Wells, Fargo, & Co., 2 W. T. 306. McDonald v. Cruzen, 2 Or. 259. ^Powell v. D. S. & G. R. R. Co., 14 Or. 23. McEwan v. Portland, 1 Or. 154. Chapman v. School Dis- trict, 1 Deady, 154. McGowan v. Pettit, 1 W. T. 514. ^Seattle etc. R. R. v. Ah Kow, 2 W. T. 239. McKay v. Campbell, 2 Saw. 118. ^Town v. De Haven, 5 Saw. 148; ^United States v. Osborne, 6 Saw. 409. McKay v. Freeman, 6 Or. 449. ""Love v. Love, 8 Or. 28; ^State V. McKinnon, 8 Or. 492; ''Farris v. Hayes, 9 Or. 83; <^ Weiss- man V. Russell, 10 Or. 74. McLaughlin v. Hoover, 1 Or. 31. -'^Ketchum v. State, 2 Or. 106. Merriiuac, The, 2 Saw. 586. <^'The Allegiance, 6 Saw. 75. Mickey v. Stratton, 5 Saw. 475. ^Rickards v. Ladd, 6 Saw. 45. Miller v. Oregon City Paper Mfg. Co., 3 Or. 24. ^Miller Bros. V. Bank of British Columbia, 2 Or. 291. Miles V. Miles, 6 Or. 266. ^Walker v. Goldsmith, 7 Or. 181. ]\Iills V. Learn, 2 Or. 215. ^Beckley v. Learn, 3 Or. 544; ^Price V. Knott, 8 Or. 443. Minard v. Douglas County, 9 Or. 206. ^King v. Benton County, 10 Or. 513; ^Bums v. Multnomah R. R. Co., 8 Saw. 550. Citations of Cases. GOl Mining Debris Case, The, 9 Saw. 441. ^Cardwcll v. American R. Bridge Co., 9 Saw. 6G5; ^liardt v. Liberty Hill C. M. & W. Co., 11 Saw. 615. Minto V. Delaney, 7 Or. 337. *^Weiss v. Oregon Iron and Steel Co., 13 Or. 497. Mizner v. Vaughn, 2 Saw. 269. ^Wythe v. Haskell, 3 Saw. 578; ^Bear v. Luse, 6 Saw. 154. Moncan, In re, 8 Saw. 350. 'In re Ho King, 8 Saw. 440. Montgomery v. Bevans, 1 Saw. 653. ^Harris v. McGovern, 2 Saw. 517; ^Leroy v. Carroll, 3 Saw. 67. Moore v. Floyd, 4 Or. 101. ^McCully v. Swackhamer, 6 Or. 440. Moore v. Floyd, 4 Or. 260. ^Inverarity v. Stowell, 10 Or. 266. Moore v. Fuller, 6 Or. 272. ^Gray v. Holland, 9 Or. 515. Moore v. Packwood, 5 Or. 325. ^McWhirter v. Brainard, 5 Or. 430. Moore v. Thomas, 1 Or. 201. <=McIntyre v. Kamm, 12 Or. 259; '-Goodenough v. Warren, 5 Saw. 498. Moorhouse v. Donica, 13 Or. 435. ^Lancaster v. McDonald? 14 Or. 266. Mora V. Foster, 3 Saw. 469. ^Mora v. Nunez, 7 Saw. 464; and see Foster v. Mora, 98 U. S. 425. Moser v. Jenkins, 5 Or. 447. ^Miller v. Tobin, 9 Saw. 408; ^'Surles V. Sweeney, 11 Or. 23; ''Guille v. Wong Fook, 13 Or. 585. Mountain v. Multnomah County, 8 Or. 474. ^Crossen v. Wasco County, 10 Or. 116; ^Vincent v. Umatilla County, 14 Or. 380. Mulkey v. IMcGrew, 2 W. T. 259. ^Puget S. I. Co. v. Worth- ington, 2 W. T. 480. Multnomah County v. State, 1 Or. 358. ''Gilliam County v. Wasco County, 14 Or. 525. J^Iumford v. Sewall, 11 Or. 67. ^Crawford v. Linn County, 11 Or. 484; ^Dundee etc. Co. v. School District, 10 Saw. 60; ^Dundee etc. Co. v. Parrish, 11 Saw. 95. Murch V. Moore, 2 Or. 189. '^Dearborn v. Patton, 3 Or. 423; ''Strong V. Barnhart, 5 Or. 499. Murray v. Oliver, 3 Or. 539. ^Southwell v. Beezley, 5 Or. 462. Musgrove v. Bonser, 5 Or. 313. '^Fleischner v. Sumpter, 12 Or. 167; '^Goodenough v. Warren, 5 Saw. 501; •'Manaudas V. Mann, 14 Or. 452. 602 Citations of Cases. Myer v. Beal, 5 Or. 130. ^Goodwin v. Morris, 9 Or. 324; ^Gray v. Holland, 9 Or. 514; ^Parker v. Metzger, 12 Or. 409; ^Hickox v. Elliott, 10 Saw. 422; ^Hickox v. Elliott, 11 Saw. 635. Neff V. Pennoyer, 3 Saw. 274; S. C, 3 Saw. 335; 3 Saw. 495; 95 U. S. 721. ^Odell v. Campbell, 9 Or. 302; ^Wythe v. Myers, 3 Saw. 598; '^United States v. Grigwold, 5 Saw. 30; ''Gager v. Henry, 5 Saw. 241; ''Mickey v. Stratton, 5 Saw. 480; ^Holmes v. 0. & C. R. R. Co., 6 Saw. 279; ^In re Ah Lee, 6 Saw. 417; ^Holmes v. 0. & C. R. R. Co., 7 Saw. 401; fDowell v. Portland, 13 Or. 268. Neiss V. Yocum, 9 Saw. 24. ^United States v. 0. R. & N. Co., 9 Saw. 67. Neppach v. Jordan, 13 Or. 246. ^Lancaster v. McDonald, 14 Or. 267. Newby v. Oregon Central R'y Co., 1 Saw. 63. ^Collinson v, Jackson, 8 Saw. 363; ^Wells, Fargo, & Co. v. O. R. & N. Co., 8 Saw. 608. Newby v. Territory of Oregon, 1 Or. 163. *^State v. Fitzhugh, 2 Or. 236. Newsom v. Greenwood, 4 Or. 119. ^Lewis v. Lewis, 4 Or. 179; ^Ramsey v. Loomis, 6 Or. 374. Nichols V. Griffin, 1 \V. T. 374. ^Phelps v. Steamship City of Panama, 1 W. T. 524; "Phelps v. Steamship City of Panama, 1 W. T. 615. Nicklin v. Wythe, 2 Saw. 535. ^Rugh v. Ottenheimer, 6 Or. 237. Norman v. IManciette, 1 Saw. 484. ^United States v. Grls- wold, 6 Saw. 257. Northcut V. Lemery, 8 Or. 316. ^Odcll v. Campbell, 9 Or. 309. North Noonday IMining Co. v. Orient Mining Co., 6 Saw. 299. '^Lakin v. Sierra Buttes Gold Mining Co., 11 Saw. 241. Norton v. Meader, 4 Saw. 603. ^Manning v. Hayden, 5 Saw. oi 8. Norton v. Winter, 1 Or. 47. ^Despain v. Crow, 14 Or. 404. Northup V. The Pilot, 6 Or. 298. «=Yarnberg v. Watson, 13 Or. 13. Nurse v. Justus, 6 Or. 75. -^Burt v. Ambrose, 11 Or. 30. Odell V. Campbell, 9 Or. 298. '^ Victor v. Davis, 11 Or. 447. Citations of Cases. 603 Odell V. Morin, 5 Or. 90. ^Brown v. Lord, 7 Or. 310; ^Vagon- blast V. Whitney, 12 Or. 89. O'llarra v. Portland, 3 Or. 525. *^Rankin v. Buckman, 9 Or. 258. O'Kelly V. Territory, 1 Or. 51. ^State v. Garrand, 5 Or. 221. Oliver v. Harvey, 5 Or. 360. ^Volf v. Smith, 6 Or. 74. On Chow V. Ilallett, 2 Saw. 259. '^William v. Hallctt, 2 Saw. 263. Orange National Bank v. TraTer, 7 Saw. 210. *^Hughes v. N. P. R. R. Co., 9 Saw. 320. Oregon Cascades R. R. Co. v. O. S. N. Co., 3 Or. 178. ^Mickey V. Stratton, 5 Saw. 479. Oregon Central R. R. Co. v. Wait, 3 Or. 91. ^■S. C, 3 Or. 428; ^Oregonian R'y Co. v. 0. R. & N. Co., 10 Saw. 469. Oregon Iron Co. v. Trullenger, 3 Or. 1. -^S. C, 2 Or. 311. Oregon R'y & Nav. Co. v. Gates, 10 Or. 515. ^Baker v. Eglin, 11 Or. 334. Oregon R'y & Nav. Go. v. Oregon Real Estate Co., 10 Or. 444. ^United States v. 0. R. & N. Co., 10 Saw. 65. Oregon Steam Nav. Co. v. Portland, 2 Or. 81. ^O. S. N. Co. v. Wasco County, 2 Or. 213. Oregon Steam Nav. Co. v. Wasco County, 2 Or. 206. ''Shum- way v. Baker County, 3 Or. 248. Oregon and Washington T. & I. Co. v. Rathbun, 5 Saw. 32. ^Singer M. Co. v. Graham, 8 Or. 21; *^Semple v. Bank of British Columbia, 5 Saw. 94; ^Dundee etc. Co. v. School District, 10 Saw. 65; ^Oregonian R'y Co. v. 0. R. & N. Co., 10 Saw. 472. Oregonian R'y Co. v. Hill, 9 Or. 377. ^Oregon R'y Co. v. Bridwell, 11 Or. 283. Oregonian R'y Co. v. 0. R. & N. Co., 10 Saw. 464. ^Dundee Mortgage etc. Co. v. Cooper, 11 Saw. 503; ^Oregon R'y Co. ^ v. Or. R'y & Nav. Co., 11 Saw. 568. Oregonian R'y Co. v. Wright, 10 Or. 162. ^Ankeny v. Fair- view Milling Co., 10 Or. 395; ''Newby v. Rowland, 11 Or. 134; '^Chung Yow v. Hop Chong, 11 Or. 224. * Oriflamme, The, 3 Saw. 397. ^Phelps v. City of Panama, 1 W. T. 535. Orton V. Orton, 7 Or. 478. » Jacobs v. McCalley, 8 Or. 126; "^^ Jacobs V. Ervin, 9 Or. 60; ^Bremer v. Fleckenstein, 9 Or. 273. 604 • Citations of Cases. Osborn v. McBride, 3 Saw. 590. *^Crane v. Morrison. 4 Saw. 143. Ouimette, In re, 1 Saw. 47. ^In re Morrill, 2 Saw. 358; ^In re Parker, G Saw. 250. Oulton V. Savings Institution, 1 Saw. G95. S. C, 17 Wall. 118; ^0. & W. T. I. Co. V. Ratlibun, 5 Saw. 35. Pacific Coast Mining and Milling Co. v. Spargo, 8 Saw. 045. Cowell V. Lammers, 10 Saw. 297. Pacific Coast Steamship Co. v. Board of R'y Com., 9 Saw. 253. ^^Wells, Fargo, & Co. v. N. P. R. R. Co., 10 Saw. 453; ^Ex parte Koehler, 11 Saw. 195. Pacific, The, 1 Deady, 192. '^The Orizaba, 1 Dcady, 196. Page V. Grant, 9 Or. 116. ^Crawford v. Beard, 12 Or. 453. Panama, The, 1 Or. 418. S. C, 1 Deady, 27; ^In re Bryant, 1 Deady, 121; ^The George S. Wright, 1 Deady, 593; '^The Glenearne, 7 Saw. 202; ^The Ullock, 9 Saw. 641; ''The Abercorn, 11 Saw. 532; ^Neil v. Wilson, 14 Or. 415. Parker v. Metzger, 12 Or. 407. ^Joy v. Stump, 14 Or. 363. Parker v. Monteith, 7 Or. 277. ^Heneky v. Smith, 10 Or. 356; ''Lee V. Cooley, 13 Or. 434. Parker v. Rogers, 8 Or. 183. ^Shively v. Parker, 9 Or. 505; ^Wilson V. Shively, 10 Or. 269; ^De Force v. Welch, 10 Or. 509; '^Wilson v. Welch, 12 Or. 359. Parkinson v. Laselle, 3 Saw. 330. *^Chapman v. Ferry, 9 Saw. 395. Parrish v. Stephens, 1 Or. 59; S. C, 1 Or. 73; S. C, Lownsdale v.Parrish, 21 How. 113. ^Leland v. Portland, 2 Or. 46; ^White V. Allen, 3 Or. 113; ^'Chapman v. School Dist. No. 1, 1 Deady, 149; ^Lamb v. Davenport, 1 Saw. 640; <=United States V. Tichenor, 8 Saw. 151; ^'Coffin v. Portland, 11 Saw. 605. Parrott, In re, 6 Saw. 349. ''In re Ah Lee, 6 Saw. 414; ^In re Ah Chong, 6 Saw. 451; ^The Railroad Tax Case, 8 Saw. 286; ^In re Lee Tong, 9 Saw. 336; ^'In re Wan Yin, 10 Saw. 538; ^'In re Tie Loy, 11 Saw. 477; '^^In re Thomas Baldw'in, 11 Saw. 536. Partlow V. Singer, 2 Or. 307. ^Sutherlin v. Roberts, 4 Or. 387; ''Creighton v. Vincent, 10 Or. 57. Pease v. Kelly, 3 Or. 417. ^Trullinger v. Kofocd, 7 Or. 231; «Kelly v. Ruble, 11 Or. 92; ''Gee v. INIcMillan, 14 Or. 274; ^Coos Bay Wagon Road Co. v. Crocker, 6 Saw. 580. Citations of Cases. G05 Peyser v. Cole, 11 Or. 39. ^Balfour v. Davis, 14 Or. 52. Phelps V. Steamship City of Panama, 1 W. T. 518. '^May- nard v. Valentine, 2 W. T. 15. Pioneer Gold Mining Co. v. Baker, 10 Saw. 84. ^Pioneer Gold M. Co. V. Baker, 10 Saw. 581. Pincus V. Light, 1 W. T. 511. ^Seattle etc. R. R. v. Ah Kow, 2 W. T. 39; ^McGowan v. Pettit, 1 W. T. 514. Pitman v. Pitman, 4 Or. 298. '^Ilass v. Sedlak, 9 Or. 4G5. Pittoek, In re, 2 Saw. 416. ^N. W. Ins. Co. v. Elliott, 7 Saw. ■ 20; ^Dowell v. Applegate, 7 Saw. 235; ^United States v. Howard, 9 Saw. 158. Playmale v. Comstock, 9 Or. 318. ^Kelly v. Ruble, 11 Or. 91. Pool V. Buffum, 3 Or. 348. ^Moreland v. Brady, 8 Or. 312. Poppleton V. Yamhill Co., 8 Or. 337. ^Dundee etc. Co. v. School District, 10 Saw. 74. Port Blakely Mill Co. v. Clymer, 1 W. T. G07. ^Blinn v. Crosby, 2 W. T. 111. Portland v. Baker, 8 Or. 356. ^Ladd v. Ramsby, 10 Or. 211. Portland v. Denny, 5 Or. 160. ^Multnomah County v. Adams, 6 Or. 115; ^Chadwick v. Earhart, 11 Or. 393. Portland v. Kamm, 5 Or. 362. /^Portland v. Lee Sam, 7 Or. 402. Portland v. Stock, 2 Or. 69. ^Bird v. Wasco County, 3 Or. 285; ^Fleischner v. Chadwick, 5 Or. 155; 'Grant County V. Sels, 5 Or. 247; ''Dolan v. Barnard, 5 Or. 393; 'Mayer V. Cahalin, 5 Saw. 359; ''State v. Wright, 14 Or. 369. Powell V. Payton, Sheridan, and Grand Ronde R. R. Co., 13 Or. 446. ^Powell v. D. S. & G. R. R. Co., 14 Or. 22. Pratt V. California M. Co., 9 Saw. 354. ^Lakin v. Buttes G. M. Co., 11 Saw. 243. Pratt V. King, 1 Or. 50. «Keyes v. Mooney, 13 Or. 182. J?rice V. Knott, 8 Or. 438. *^Knott v. Jefferson Street Ferry Co., 9 Or. 535. Pruden v. Grant Co., 12 Or. 308. ^Wood v. Riddle, 14 Or. 254. Putnam v. Douglas County, 6 Or. 328. ^Terwilliger v. Mult- nomah County, 6 Or. 296. Quicksilver Mining Co. v. Hicks, 4 Saw. 688. '^Weiss v. Ore- gon I. & S. Co., 13 Or. 497. Railroad Tax Case, see San Mateo County v. S. P. R. R. Co., infra. 606 Citations of Cases. Eandall, In re, 1 Deady, 524. ^In re Ryan, 2 Saw. 413. Randall and Sutherland, In re, 1 Deady, 557. ^Catlin v. Iloff- raan, 2 Saw. 492. Raymond v. Coffee, 5 Or. 132. ^Ramsey v. Loomis, 6 Or. 374; ^Board of S. L. Com. v. Wiley, 10 Or. 89; ^Mclntyre v. Kamm, 12 Or. 260. Rees V. Rees, 7 Or. 78. ^Poppleton v. Nelson, 10 Or. 439. Remdall v. Swackharaer, 8 Or. 502. -^^Capital Lumbering Co. V. Hall, 9 Or. 108. Remillard v. Prescott, 8 Or. 37. ^McCoy v. Bayley, 8 Or. 198. Rhea v. Umatilla Co., 2 Or. 298. ^Shumway v. Baker County, 3 Or. 249; ^Poppleton v. Yamhill County, 8 Or. 339. Rich V. Palmer, 6 Or. 339. ^Rich v. Palmer, 7 Or. 137; ^Abraham v. Chenoweth, 9 Or. 354. Rickey v. Ford, 2 Or. 251. ^State v. McKinnon, 8 Or. 490. Robertson v. Groves, 4 Or. 210. '^Simon v. Portland Com. Council, 9 Or. 443. Roberts v. Sutherlin, 4 Or. 219. ^Renshaw v. Taylor, 7 Or. 325; ^Witherell v. Wiberg, 4 Saw. 236; ^Semple v. Bank etc., 5 Saw. 400. Roberts v. Tucker, 1 W. T. 179. ^Roberts v. Bush, 1 W. T. 181. Robbins v. Baker, 2 Or. 52. ^Sherman v. Osborn, 8 Or. 67; ^Wilson V. Allen, 11 Or. 156. Robinson v. Saterlee, 3 Saw. 134. ^C. & S. Bank of San Jose V. Corbett, 5 Saw. 175. Rogue River Mining Co. v. Walker, 1 Or. 341.. ^White v. Northwest Stage Co., 5 Or. 102. Rolfes V. Russel, 5 Or. 400. ''Grangers' Market Co. v. Vinson, 6 Or. 175; ^Dunning v. Cresson, 6 Or. 242. Rosencrantz v. Territory, 2 W. T. 267. ^Schilling v. Terri- tory, 2 VV. T. 285; ^Valker v. Territory, 2 W. T. 286. Rudolph, In re, 6 Saw. 295. ^Wong Yung Quy, In re, 6 Saw. 447. Rugh V. Ottenheimer, 6 Or. 231. ^^Besser v. Joyce, 9 Or. 317; *^Stubblefield v. Menz.ies, 8 Saw. 45; ^'Ex parte Hanson, 11 Saw. 659. Russell V. Lewis, 3 Or. 380. ^Farley v. Parker, 6 Or. 113; ''Walker v. Goldsmith, 14 Or. 145. Ryan v. Central Pacific R. R. Co., 5 Saw. 260. ^S. C, 99 Citations of Cases. 607 U. S. 383; ^S. P. R. R. Co. v. Orton, 6 Saw. 198; <^United States V. Mullan, 7 Saw. 473; ^S. P. R. R. Co. v. Dull, 10 Saw. 512; ''United States v. C. P. R. R. Co., 11 Saw. 441. Ryan v. Harris, 2 Or. 175. ^Craig v. Mosier, 2 Or. 324; ^State V. Wiley, 4 Or. 186; ''Multnomah County v. Adams, 6 Or. 115. San Francisco v. Mackay, 10 Saw. 300. *^San Francisco v. Muckay, 10 Saw. 431. Sa;n Mateo County v. S. P. R. R. Co. (The R. R. Tax Case), 8 Saw. 238. S. C, 116 U. S. 138; ''S. F. & N. P. R. R. Co. V. Dinwiddle, 8 Saw. 313; ^Burns v. Multnomah R'y Co., 8 Saw. 551; ^Santa Clara R. R. Tax Case, 9 Saw. 185; ^Dundee etc. Co. v. School District, 10 Saw. 63; and see Santa Clara County v. S. P. R. R. Co., 118 U. S. 394; San Bernardino County v. S. P. R. R. Co., 118 U. S. 417. Savage v. Glenn, 10 Or. 440. *^Glenn v. Savage, 14 Or. 572. Schirott V. Philippi, 3 Or. 484. "^Evans v. Christian, 4 Or. 376; ^^Sellers v. Corvallis, 5 Or. 275; '^Canyonville & G. Road Co. V. Douglas County, 5 Or. 283; ^Ramsey v. Pet- tengill, 14 Or. 208. Schooner Columbus, The, 5 Saw. 487. ^Steamboat S. M. Whipple, 7 Saw. 72. Scott V. Cook, 1 Or. 24. ''Rogue River M. Co. v. Walker, 1 Or. 343. Scovill V. Barney, 4 Or. 288. ^Moser v. Jenkins, 5 Or. 449; ^Miller v. Tobin, 9 Saw. 408. Sellers v. Corvallis, 5 Or. 273. ^Corvallis v. Stock, 12 Or. 391; "Ramsey v. Pettengill, 14 Or. 211. Sellwood V. Gray, 11 Or. 534. ^Watson v. Dundee M. & T. I. Co., 12 Or. 480. Semple v. Bank of British Columbia, 5 Saw. 88. ''Alexander V. Knox, 6 Saw. 59; ^N. W. Ins. Co. v. Elliott, 7 Saw. 19; ^Orange National Bank v. Traver, 7 Saw. 213; *Oregonian R'y Co. V. 0. R. & N. Co., 10 Saw. 479. Sharp V. Stephens, 6 Saw. 48. ^Cahn v. Barnes, 7 Saw. 54. Shattuck v. Smith, 5 Or. 125. ^State v. Brown, 7 Or. 202. She At V. Hallett, 2 Saw. 259. '^Wllham v. Ilallett, 2 Saw. 263. Sheppard v. Yocum, 10 Or. 402; "Sheppard v. Yocum, 11 Or. 237. 608 Citations of Cases. Sherman v. Osborn, 8 Or. 66. ^Wilson v. Allen, 11 Or. 156, Shively v. Parker, 9 Or. 500. ^Shively v. Welch, 10 Saw. 141. Shively v. Welch, 2 Or. 288. *^Newsom v. Greenwood, 4 Or. 123; ^Lewis v. Lewis, 4 Or. 179. Shockley v. Brown, 1 W. T. 463. ^Garrison v. Cheeney, 1 W. T. 492. Shong Toon, In re, 10 Saw. 268. ^In re Chew Heong, 10 Saw. 376. Silverman, In re, 1 Saw. 410. "^In re Ryan, 2 Saw. 413. Simon v. Portland Common Council, 9 Or. 437. '^Wood v. Riddle, 14 Or. 254. Simpson v. Bailey, 3 Or. 515. ^McWhirter v. Brainard, 5 Or. 429; ^Singer M. Co. v. Graham, 8 Or. 21; ^Or. & W. T. I. Co. V. Rathbun, 5 Saw. 36; ^O'Keefe v. Weber, 14 Or. 57. Simpson v. Prather, 5 Or. 86. ^State v. McKinnon, 8 Or. 486. Sloper Y. Carey, 9 Or. 511. ^Taylor v. Jenkins, 11 Or. 275. Smith V. Ellendale Mill Co., 4 Or. 70. ^Trullenger v. Todd, 5 Or. 37; ^Strong v. Barnhart, 6 Or. 99. Smith V. Ingles, 2 Or. 43. ^Bloomfield v. Humason, 11 Or. 232; ^In re Estes, 6 Saw. 462; ^Hickox v. Elliott, 11 Saw. 653. Smith V. Shattuck, 12 Or. 362. ^Minter v. Durham, 13 Or. 477. Smith V. Smith, 8 Or. 100. ^McMahan v. McMahan, 9 Or. 525; ^Cline v. Cline, 10 Or. 478. Solomon v. Bushnell, 11 Or. 277. 'Gill v. Frank, 12 Or. 511. S. P. R. R. Co. V. Orton, 6 Saw. 157. ^The Railroad Tax Case, 8 Saw. 298; ^Wells, Fargo, & Co. v. O. R. & N. Co., 8 Saw. 608; SS. P. R. R. Co. v. Dull, 10 Saw. 512. Sprigg V. Stump, 7 Saw. 265. ^Vells, Fargo, & Co. v. 0. R. & N. Co., 8 Saw. 607. Springfield Milling Co. v. Lane County, 5 Or. 265. "^Rankin V. Buckman, 9 Or. 261. Stackpole v. School District, 9 Or. 508. ^Sheridan v. Salem, 14 Or. 332. Stannis v. Nicholson, 2 Or. 332. ^Hill v. Cooper, 6 Or. 186; '^Baker v. Woodward, 12 Or. 13. Starr v. Hamilton, 1 Deady, 268. ^ Wells v. Applegate, 10 Or. 521; »^Dick v. Hamilton, 1 Deady, 332; '-Wythe v. Smith, 4 Saw. 22; ^Manning v. Hayden, 5 Saw. 379; ^Elliott v. Citations of Cases. 609 Teal, 5 Saw. 252; ^Stubblefield v. Menzies, 8 Saw. 45; ^Lemon v. Waterman, 2 W. T. 491. Starr v. Stark, 2 Or. 118. «Stark v. Starr, 6 Wall. 402; nVhit- low V. Reese, 4 Or. 337; ^Dolph v. Barney, 5 Or. 203; ^Starr v. Stark, 7 Or. 500; ^Coolidge v. Forward, 11 Or. 120; ^Stark v. Starr, 1 Deady, 17; ^C. P. R. R. Co. v. Dyer, 1 Saw. 649; Stark v. Starr, 1 Saw. 20, 245; SShuffle- ton V. Nelson, 2 Saw. 543; ''Starr v. Stark, 2 Saw. 603; ^Starr v. Stark, 2 Saw. 641; ^Failing v. Stark, 2 Saw. . 644; ^Bacon v. Stark, 2 Saw. 644; ''NefF v. Pennoyer, 3 Saw. 499; ^Semple v. Bank of British Columbia, 5 Saw. 403; ^Bear v. Luse, 6 Saw. 151; ^In re Ah Lee, 6 Saw. 424; ^Mining Debris Case, 9 Saw. 533; ^Goldsmith v. Gilliland, 10 Saw. 610; '^Bybee v. Or. & Cal. R. R. Co., 11 Saw. 486; *^Hughes v. Dundee Mortgage etc. Co., 11 Saw. 549. Starr v. Stark, 7 Or. 500. ^Hill v. Cooper, 8 Or. 258. State V. Anderson, 10 Or. 448. ^State v. Abrams, 11 Or. 172. State V. Bacon, 13 Or. 143. ^State v. Saunders, 14 Or. 314. State V. Benjamin, 2 Or. 125. ^Fleischner v. Chadwick, 5 Or. 155; ^Grant County v. Sels, 5 Or. 246. State V. Brown, 7 Or. 182. ^State v. Johnson, 7 Or. 211;. ^Leonard v. Territory, 2 W. T. 391. State V. Bruce, 5 Or. 68. «State v. Doty, 5 Or. 493. State V. Burchard, 2 Or. 78. *^East Portland v. Multnomah County, 6 Or. 64. State V. Carr, 6 Or. 133. ^tate v. Bergman, 6 Or. 344; ^State V. Dale, 8 Or. 231. State V. Dodson, 4 Or. 64. ^State v. Brown, 7 Or. 198; ^State V. Wintzingcrode, 9 Or. 157. State V. Dougherty, 4 Or. 200. «State v. Doty, 5 Or. 492; »State V. Sam, 14 Or. 348. State V. Fitzhugh, 2 Or. 227. ''State v. Wilson, 6 Or. 429; ^ ^Hallock V. Portland, 8 Or. 30; ^State v. McDonald, 8 Or. 118; estate v. Dale, 8 Or. 233; <^State v. Mackey, 12 Or. 156; ^Kearney v. Snodgrass, 12 Or. 315. State V. Git Lee, 6 Or. 425. '^In re Lee Tong, 9 Saw. 336. State V. Hays, 2 Or. 314. ^Whitney v. Darrow, 5 Or. 444. State y. Jackson, 9 Or. 457. '^Breon v. Henkle, 14 Or. 513. State V. Lee Ping Bow, 10 Or. 27. ^State v. Abrams, 11 Or. 171. Ob. DIO./-39 610 Citations of Cases. State V. Lurch, 12 Or. 99. ^State v. Saunders, 14 Or. 313. State V. Mann, 2 Or. 238. ^State v. Carr, 6 Or. 135; ^State v. . Gitt Lee, 6 Or. 428; ^In re Lee Tong, 9 Saw. 337. State V. McDonald, 8 Or. 113. ^State v. Powers, 10 Or. 152; ^Sheppard v. Yocum, 10 Or. 409. State V. McKinmore, 8 Or. 207. ^De Lashmutt v. Selwood, 10 Or. 52; ^'Goldsmith v. Gilliland, 10 Saw. 614. State V. McKinnon, 8 Or. 493. '^Simon v. Portland Common •Council, 9 Or. 443; '^Weissman v. Pvussell, 10 Or. 74; ^N. P. Terminal Co. v. Lowenberg, 11 Or. 287. State V. Oregon Central R. Pv. Co., 2 Or. 255. ^Fields v. Lamb, 2 Or. 342. State V. Officer, 4 Or. 180. ^Tustin v. Gaunt, 4 Or. 307; ^Mo- nastes v. Catlin, 6 Or. 121; ^Minard v. Douglas County, 9 Or. 213; ^N. P. T. Co. v. Portland, 14 Or. 26. State V. Packard, 4 Or. 157. ^State v. Perham, 4 Or. 189; tState V. Ah Sam, 14 Or. 348. State V. Sly, 4 Or. 277.- ^State v. Bergman, 6 Or. 343. State V. Spores, 4 Or. 198. ^State v. Cartwright, 10 Or. 195. State V. Tom, 8 Or. 177. ^Hayden v. Long, 8 Or. 246; ''State V. Jackson, 9 Or. 461; ^Breon v. Henkle, 14 Or. 513. State V. Vowels, 4 Or. 324. ^State v. Gaunt, 13 Or. 120. , State V. Whitney, 7 Or. 386. ^'State v. Justus, 11 Or. 180; ^State V. Mackey, 12 Or. 160. State V. Wiley, 4 Or. 184. *^Portland v. Denny, 5" Or. 161; ^Multnomah County v. Adams, 6 Or. 115. State V. Wilson, 6 Or. 428. ^Hallock v. Portland, 8 Or. 30. ^State V. McDonald, 8 Or. 118; ^State v. Powers, 10 Or. 152; ^State v. Mackey, 12 Or. 156. Steamer Spark v. Lee Choi Chum, 1 Saw. 713. *^Tazaymon v. Twombley, 5 Saw. 81. Steamer Zephyr v. Brown, 2 W. T. 44. HVaddell v. Steamer Daisy, 2 W. T. 79. Steeples v. Newton, 7 Or. 110. ^Todd v. Huntington, 13 Or. 10. Stephens v. Allen, 11 Or. 188. ''Wilhelm v. Woodcock,. 11 Or. 522. Stephens v. Knott, 2 Or. 304. ^S. C, 3 Or. 50. Stephens v. Murton, 6 Or. 193. ^McCoy v. Bayley, 8 Or. 198. Stevena, In re, 1 Saw. 397. ^In re Webb, 4 Saw. 329. Citations of Cases. 611 Stevens v. Sharp, 6 Saw. 113. ^Bear v. Luse, 6 Saw. 156. St. Helens Mill Co., In re, 3 Saw. 88. ^Corbett v. Woodward, 5 Saw. 411. Stingle V. Nevcl, 9 Or. 62. ^State v. Chadwick, 10 Or. 473. Stone V. Oregon City Mfg. Co., 4 Or. 52. ^Ilurst v. Burnside, 12 Or. 530. Strong V. Barnhart, 6 Or. 93. ^Allen v. Norton, 6 Or. 350. Stubblefield v. MerLzies, 8 Saw. 41. ^Myers v. Reed, 9 Saw. . 136. Sutherland, In re, 1 Deady, 344. ^In re Ryan, 2 Saw. 413; ^Catlin V. Hoffman, 2 Saw. 492. Swegle V. Wells, 7 Or. 222. ''De Lashmutt v. Everson, 7 Or. 218. Taggart v. Risley, 4 Or. 235. ^Wilson v. McEwan, 7 Or. 108; ^Bayley v. McCoy, 8 Or. 26l. Taylor v. Patterson, 5 Or. 121. ^Russell v. Swift, 5 Or. 234; ^Corbitt V. Salem Gas Light -Co., 6 Or. 408. Taylor v. Scott, 10 Or. 483. "^Harrington v. Watson, 11 Or. 148; ^Goldsmith v. Gilliland, 10 Saw. 610. Taylor v. Welch, 6 Or. 198. ^Shively v. Hume, 10 Or. 76. Teal V. Collins, 9 Or. 89. ^Coolidge v. Forward, 11 Or. 120. Tenny v. Mulvaney, 8 Or. 129. S. C, 8 Or. 513; S. C, 9 Or. 405; ^State v. Drake, 11 Or. 399. Territory v. Coleman, 1 Or. 191. '^Smith v. United States, 1 W. T. 273; ^State v. Brown, 2 Or. 224. The 420 Mining Co. v. Bullion M. Co., 3 Saw. 634. ^Trafton v. Nougues, 4 Saw. 180; "^Kinney v. Con. Virginia M. Co., 4 Saw. 452; ^Stubblefield v. Menzies, 8 Saw. 47. Tliompson v. Multnomah County, 2 Or. 34. <^State v. Officer, 4 Or. 183; ^Tustin v. Gaunt, 4 Or. 307; ^Monastes v. Cat- lin, 6 Or. 121; ^Simon v. Portland Common Council, 9 ^ Or. 443; ^Dick v. Wilson, 10 Or. 490; '^Wood v. Riddle, 14 Or. 254. Tierney v. Tierney, 1 W. T. 568. ^Page v. Rodney, 2 W. T. 463. Tilton V. Oregon Cent. Mil. Road Co., 3 Saw. 22. ^Holmes v. School District No. 15, 11 Or. 332; ^In re Boyd, 4 Saw. 266. Trafton v. Nongues, 4 Saw. 178. ''McFadden v. Robinson, 10 Saw. 400; ^Hambleton v. Duham, 10 Saw. 490; <-Theur- kauf V. Ireland, 11 Saw. 514. 612 Citations of Cases. Tribou v. Strowbridge, 7 Or. 156. ^Steeples v. Newton, 7 Or. 113; ''Todd v. Huntington, 13 Or. 10. Trullenger v. Todd, 5 Or. 36. ^Strong v. Barnhart, 6 Or. 98; ^Hass V. Sedlak, 9 Or. 464; ^Mickey v. Stratton, 5 Saw. 482. Trullinger v. Kofoed, 7 Or. 228; S. C, 8 Or. 436. ^Crane v. Runey, 11 Saw. 420. Trutch V. Bunnell, 5 Or. 504. «Truteh v. Bunnell, 11 Or. 59. Tustin V. Gaunt, 4 Or. 305. ^Murray v. Murray, 6 Or. 24; '^Farley v. Parker, 6 Or. 113; ^Monastes v. Catlin, 6 Or. 120; ^Gage v. Henry, 5 Saw. 241; '^Holmes v. Or. & Cal. R. R. Co., 6 Saw. 279; ^Sprigg v. Stump, 7 Saw. 292; ^Holmes v. Or. & Cal. R. R. Co., 7 Saw. 384. Ullock, The, 9 Saw. 634. ^The Abercorn', 11 Saw. 532; ^Ex parte Hanson, 11 Saw. 662. Underwood v. French, 6 Or. 66. ^Barrett v. Failing, 8 Or. 157; ^'Glenn v. Savage, 14 Or. 575. Union M. & M. Co. v. Dangberg, 2 Saw. 450, ^McWilliams v. Withington, 7 Saw. 207. Union M. & M. Co. v. Ferris, 2 Saw. 176. '^Union M. & M. Co. V. Dangberg, 2 Saw. 453. United States v. Block, 4 Saw. 211. See 98 U. S. 61; and see United States v. Throckmorton, infra; ^In re Spenser, 5 Saw. 190; ^United States v. Watkinds, 7 Saw. 88; ^United States V. Reilley, 10 Saw. 135. United States v. Bridleman, 7 Saw. 243. ^United States v. Martin, 8 Or. 475; ^United States v. Barnhart, 10 Saw. 492. United States v. Carr, 8 Saw. 302. ^United Stales v. Wil- liams, 6 Saw. 245. United States v. Davenport, 1 Deady, 264. ^Ex parte Ilibbs, 11 Saw. 460. United States v. Dodge, 1 Deady, 186, ^State v. Dunbar, 13 Or. 594. United States v. Flint, 4 Saw. 42. ^S. C, 98 U. S. 61; ^Man- ning V. San Jacinto Tin Co., 7 Saw. 427; *^United States v. White, 9 Saw. 127; '^Pratt v. California Mining Co., 9 Saw. 367; ^"United States v. San Jacinto Tin Co., 10 Saw, 641; ^United. States v. Rose, 11 Saw. 84. Citations op Cases. 613 United States v. Griswold, 5 Saw. 25. ^United States v. Gris- wold, G Saw. 25G; see S. C, 7 Saw. 296 and 311; see Bush V. United States, 8 Saw. 322. United States v. Ilcndrick, 2 Saw. 476. ''United States v. O'Neill, 2 Saw. 481; ^United States v. Johnson, 2 Saw. 482. United States v. Howard, 1 Saw. 507. '"United States v. Page, 2 Saw. 354. United States v. Leathers, 6 Saw. 17. ''United States v. Stur- geon, 6 Saw. 29; ^United States v. Bridleman, 7 Saw. 251. United States v. Loftis, 8 Saw. 194. "United States y. ^Morris, 9 Saw. 440. United States v. Martin, 8 Saw. 473. ''United States v. Barn- hart, 10 Saw. 192. United States v. Mattock, 2 Saw. 148. <^United States v. Bridleman, 7 Saw. 245. United States v. Mayer, 1 Deady, 138. ^State v. Gerrand, 5 Or. 221. United States v. McArdle, 2 Saw. 367. Kahn v. Salmon, 10 Saw. 196. United States v. Nelson, 5 Saw. 68. ^United States v. Young, 8 Saw. 109; ^United States v. Williams, 9 Saw. 377. United States v. Robinson, 1 Saw. 219. ^S. C, 13 Wall 363; ^Balfour v. Wilkins, 5 Saw. 434. United States v. Seveloff, 2 Saw. 311. TTnited States v. Wins- low, 3 Saw. 338; "^United States v. Leathers, 6 Saw. 19; <=United States v. Williams, 6 Saw. 245; ^United States v. Bridleman, 7 Saw. 244; ^United States v. Stephens, 8 Saw. 117; ''Kie v. United States, 11 Saw. 581. United States v. Shaw Mux, 2 Saw. 364. <^United States v. Winslow, 3 Saw. 340. United States v. Smith, 8 Saw. 100. ^United States v. Williams, 9 Saw. 107; ^'United States v. Benjamin, 10 Saw. 266. United States v. Stephens, 8 Saw. 116. ^Kie v. United States, 11 Saw. 581. United States v. Sturgeon, 6 Saw. 29, ^United States v. How- ard, 9 Saw. 158. United States v. Tichenor, 8 Saw. 142. ^United States v. White, 9 Saw. 131; ^Pratt v. California Mining Co., 9 Saw. 367; ''United States v. Adams, 11 Saw. 107. 614 Citations of Cases. United States v. The San Jacinto Tin Co., 10 Saw. 639. ^United States V. Rose, 11 Saw. 84. United States v. Throckmorton, 4 Saw. 42. ^S. C, 98 U. S. 61; '^United States v. White, 9 Saw. 127; ^^United States v. Minor, 10 Saw. 155; *^United States v. San Jacinto Tin Co., 10 Saw. 641; see United States v. Block, supra. United States v. Tom, 1 Or. 27. ^United States v. Sevelofif, 2 Saw. 314; ^United States v. Shaw Mux, 2 Saw. 365; ^United States v. Winslow, 3 Saw. 338; ^United States v. Leathers, 6 Saw. 19; ^United States v. Bridleman, 7 Saw. 224. United States v. Waller, 1 Saw. 701. ^United States v. Block, 4 Saw. 213; ^United States v. Reilley, 10 Saw. 135. United States v. Walsh, 1 Deady, 281. ^United States v. Gris- wold, 5 Saw. 30. United States v. White, 9 Saw. 125. ^United States v. Minor, 10 Saw. 155; ^United States v. Rose, 11 Saw. 84. United States v. Winslow, 3 Saw. 337. ^Conroy v. Oregon Con. Co., 10 Saw. 633. Vandolph v. Otis, 1 Or. 153. ^Lamb v. Starr, 1 Deady, 362; ^Stevens v. Sharp, 6 Saw. 117; ^Murray v. Murray, 6 Or. 30. Walker v. Goldsmith, 7 Or. 161. ^Burns v. Scoggin, 10 Saw. 77. Wallace, In re, 1 Deady, 433. ^In re MuUer, 1 Deady, 518; *^In re Oregon Iron Works, 4 Saw. 170. Walsh V. Oregon R'y & Nav. Co., 10 Or. 250. ^Grant v. Baker, 12 Or. 331; ^Conroy v. Oregon Con. Co., 10 Saw. 632. Walton, In re, 1 Deady, 442. In re Walton, 1 Deady, 510; In re Walton, 1 Deady, 598. Wan Yin, In re, 10 Saw. 532. ^Ex parte Hanson, 11 Saw. 661. Warner v. Myers, 4 Or. 72. ^Durham v. Monumental S. M. Co., 9 Or. 44; ^Habersham v. Sears, 11 Or. 434. Waters v. Campbell, 4 Saw. 121. United States v. Williams, 6 Saw. 245; '^Kie v. United States, 11 Saw. 581. Watkins v. Mason, 11 Or. 72. ^Phipps v. Kelly, 12 Or. 215. Watson V. Brooks, 8 Saw. 31,6. The Ullock, 9 Saw. 642; ^Goldsmith v. Gilliland, 10 Saw. 618. Watts V. United States, 1 W. T. 288. ^Watts v. Territory, 1 W. T. 411. Citations of Cases. 615 Webb V. Nickerson^l Or. 382. ^Case T. M. Co. v. CampbeU, 14 Or. 469. Weiss V. Jackson County, 9 Or. 470. ^Watticr v. Miller, 11 Or. 330. Wells V. Applegate, 10 Or. 519, <^ Aiken v. Coolidge, 12 Or. 247. Wells, Fargo, & Co. v. Oregon and California R. R. Co., 9 Saw. 426. ^Wells, Fargo, & Co. v. 0. R. & N. Co., 9 Saw. 605. Wells, Fargo, & Co. v. Oregon and California R. R. Co., 8 Saw. 600. ^S. C, 9 Saw. 426; ^Ex parte Richard Koehler, 11 Saw. 39. Wells, Fargo, & Co. v. Oregon R'y & Nav. Co., 8 Saw. 600. «=Hughes V. N. P. R. R. Co., 9 Saw. 322; ^Wells, Fargo, & Co. V. N. P. R'y Co., 10 Saw. 457; ^Ex parte Richard Koehler, 11 Saw. 39. Wetmore v. Wetmore, 5 Or. 469. ^Hall v. Hall, 9 Or. 456; ^Barrett v. Failing, 6 Saw. 476, ^Vheeler v. Port Blakcly Mill Co., 2 W, T, 71. ^Baxter v. Smith, 2 W. T. 99. White V. Northwest Trading Co., 5 Or. 99. ^Bailey v. Wil- liams, 6 Or. 73. Willamette Falls Canal Milling & T. Co. v. Williams, 1 Or, 112. f Willamette Falls Canal Milling & T. Co. v. Clark, 1 Or. 113. Willamette Falls etc. Co. v. Smith, 1 Or. 181. ^State v. Dougherty, 4 Or. 202. Willamette Falls Transportation & M. Co. v. Remick, 1 Or. 169. '^Dalles L. & M. Co. v. The W. W. M. Co., 3 Or. 531. Wilson V. Maddock, 5 Or. 480. HBartel v. Lope, 6 Or, 327. ^Wilson V. McEwan, 7 Or. 87. ^Wilson v. Shively, 10 Or. 269. 'Wilson V. Salem, 3 Or. 482. ^Cross v. Chichester, 4 Or. 116. Wilson V. Shively, 11 Or. 215. ^Wilson v. Welch, 12 Or. 358. Wilson V. Wald, 2 W. T. 376. ^Collins v. Seattle, 2 W. T, 355. Wilson V. Welch, 12 Or. 353. ^IcCann v. Oregon R'y Co., 13 •Or. 463. Wilson Sewing Machine Co. v. Moreno, 6 Saw. 35. *^Peyser v. Cole, 11 Or. 45; ^P, R. M, Co. v. D. S. & G. R. R. Co., 7 Saw. 68; ^Burns v. Scoggin, 10 Saw. 75, 616 Citations of Cases. Wi-igard v. Jameson, 2 W. T. 402. ^Sparks v. Brown, 2 W. T. 433. Weise v. Smith, 3 Or. 445. ^Shaw v. Oswego Iron Co., 10 Or. 375. Witherell v. Wiberg, 4 Saw. 232. ^Eubanks v. Leveridge, 4 Saw. 277; ^Semple v. Bank of British Columbia, 5 Saw. 101; ^'Oregon Trust Co. v. Shaw, 5 Saw. 338; *^Oregonian R'y Co. V. 0. R. & N. Co., 10 Saw. 471. Wolf V. Smith, 6 Or. 73. ^Roy v. Horsley, 6 Or. 272. Wong Yung Quy, In re, 6 Saw. 237. S. C, 6 Saw. 442; ^In re Ah Lee, 6 Saw. 414; '^Laundry Ordinance Case, 7 Saw. 532; cin re Wan Yin, 10 Saw. 538. Wood V. Riddle, 14 Or. 254. ^Snow v. Reed, 14 Or. 346. Woodsides v. Rickey, 1 Or. 108. ^Lee v. Simmonds, 1 Or. 158. Wright, The, 1 Dea'dy, 591. ^Holmes v. Or. & Cal. R. R. Co., 6 Saw. 272; ^The Glenearne, 7 Saw. 202. Wright and Jones v. Edwards, 10 Or. 298. ^N. P. T. Co. v. Portland, 14 Or. 27; nValker v. Goldsmith, 14 Or. 143. Wythe V. Haskell, 3 Saw. 574. ^Wythe v. Smith, 4 Saw. 24. Wythe V. Smith, 4 Saw. 17. <=Newby v. Rowland, 11 Or. 134; ^Elliott V. Teal, 5 Saw. 250; ^'Manning v. Ilayden, 5 Saw. 378; ^Coos Bay Wagon Road Co. v. Crocker, 6 Saw. 578; ^Alexander v. Knox, 6 Saw. 57; *^Stubblefield v. Menzies, 8 Saw. 45. TABLE OF CASES. TABLE or CASES. Abbott, ISIcMullan v., 1 Or. 258. Abbott, Abrabarav., 8 Or. 53. Abraham v. Abbott, 8 Or. 53; 207. Abraham v. Chenoweth, 9 Or. 348; 277, 404, 406. Abraham, Crawford v., 2 Or. 163. Abraham. Iloseburgv., 8 Or. 5'J9. Abraham, Douglas County Road Co. v., 5 Or. 318. Abrams, Scars v., 10 Or. 499. Abrams, State v., 11 Or. 169. Ackcrraan, Williams v. , 8 Or. 405. Adams v. Adams, 12 Or. 170; 217, 219. Adams v. Kelly, 2 W. T. 263; 527. Adams v. Multnomah Co., 6 Or. 116; 118, 283, 4'15, 464. Adams v. Petram, 11 Or. 204; 10, 13, 15, 96, 108, 163, 353, 540. Adams v. Rutherford, 13 Or. 78; 63, 92, 552. Adams v. Wilson, 6 Or. 391; 330, 441, 469. Adams, McAlmond v., 1 W. T. 230. Adams, Multnomah Co. v., 6 Or. 114. Adams, Trustees M. E. Church v., 4 Or. 76. Adkins v. Lewis, 5 Or. 292; 408. Ah Kow, Seattle and Walla Walla R. R. Co. v., 2 W. T. 36. ^Ah Lee, State v., 7 Or. 237. Ah Lee, State v., 8 Or. 214. Ah Lcp V. Gong Choy, 13 Or. 429; 49, 58, 542. Ah Lcp V. Gong Choy and Gong Wmg, 13 Or. 205; 45, 46, 79, 327, 329, 331, 375, 394, 442, 448. Ah Sam, State v., 7 Or. 477. Ah Sam, State v., 14 Or. 347. Aiken' V. Aiken, 12 Or. 203; 7, 10, 108, 165, 225, 288, 353, 355, 374, 476. Aiken v. Coolidge, 12 Or. 244; 10, 14, 370, 453. Aikiu V. Leonard ct al., 1 Or. 224; 61, 62, 190, 260. Albany and Santiam W. D. Co. v. Crawford, 11 Or. 243; 211, 212, 257, 403, 404. Albce V. Albee, 3 Or. 321; 28, 438, 522, 523, 564. Alberson v. Mahaffey, 6 Or. 412; 21, 48, 56. Allen V. Hirsch, 8 Or. 412; 126, 306, 532. Allen' V. Norton, 6 Or. 344; 274, 333, 334, 346. Allen, Newton v., 3 Or. 543. Allen, Spechtv., 12 Or. 117. Allen, Stephens v., 11 Or. 188. Allen, White v., 3 Or. 103. Allen and Lewis, Wilson v., 11 Or. 154. Altree v. Moore, 1 Or. 350: 288, 369. Ambrose, Burt v., 11 Or. 26. Anderson v. Baxter, 4 Or. 105; 403, 405, 465, 525. Anderson v. Laughery, 3 Or. 277; 31, 484. Anderson, Carroll v., 2 W. T. 366. Anderson, State v., 10 Or. 448. Andros v. Childers, 14 Or. 447; 27, 93, 331, 370, 371, 453. Andrusv. Knott, 12 Or. 501; 486. Ankeny V. Blackiston, 7 Or. 407; 301, 467, 538. Aikeny v. Fairview Milling Co., 10 Or. 390; 21, 46, 50, 34S, 4:i4. Ankeny v. Multnomah County, 3 Or. 386; 388, 546. Ankeny v. Multnomah Co., 4 Or. 271; 531, 546. Ankeny, Brooks v., 7 Or. 461. Applegate, Wells v., 10 Or. 519. Applcgate, WcCs v., 12 Or. 208. Archer v. Lapp, 12 Or. 196; 292. Armstrong v. Armstrong, 1 Or. 207; 8, 535. Arrigoni v. Johnson, 6 Or. 167; 192, 193, 269, 427, 469. Arrigoni, Johnson v., 5 Or. 485. Arthur v. Moss, 1 Or. 193; 192, 510. 620 Table of Cases. Astoria, Won10, 294, 395. Bonser, Musgrove v., 5 Or. 313. Boon V. Boon, 12 Or. 4.37; 217, 220. Boon V. MeClane, 2 Or. 331; 56, 351, 439. Bovee, State v., 11 Or. 57. Bowen v. Emmerson, 3 Or- 452; 114, 511. Bowen v. State, 1 Or. 270; 30.-46,-62, 173, 190, ,348, 427, 428. Bowles V. Doble, 1 1 Or. 474; 26, 63, 83, 330, 331, 460, 470. Bowman v. Holladay, 3 Or. 182; 457. Boyd, King v., 4 Or. 326. Boydston v. Giltner, 3 Or. 118; 192, 193, 260, 364, 421, 423, 451, 455, 456. Boyer v. Fowler, 1 W. T. 101; 97, 100, 101, 165, 197, 215, 437, 498, 501, 529. Brady, Moreland v., 8 Or. 303. Brainard, McWhirter v., 5 Or. 426. Branson v. Oregonian Railway Co., 10 Or. 278; 57, 82, 141, 148, 153, 470, 476, 492. Branson v. Oregonian Railway Co., 11 Or. 161; 57, 139, 149, 153, 258, 295, 458, 460, 470, 558. Brauns v. Stearns, 1 Or. 367; 207, 256, 459. Brazee, Clarke County v., 1 W. T. 199. Brazee v. Schofield, 2 W. T. 209; 242, 301, 302, 375, 445, 480, 481, 484, 489. Breemer v. Burgess, 2 W. T. 290; 5, 28, 36, 43, 47, 325, 473. Bremer v. Fleckcnstein ani v., 1 Or. 199. Denny, City of Portland v., 5 Or. 160. Denny, Parker v., 2 W. T. 360. Derkeny v. Beltils, 4 Or. 258; 2, 27. Despain v. Crow, 14 Or. 404; 298, 347, 51.2. Dice V. Willamette T. & L. Co., 8 Or. 60.- 94, IW, 422. Dick V. Kendall, 6 Or. 166; 33, 53, 441, 468, 475, 476. Dickv. Wilson, 10 Or. 490; 116, 348, 349, 351. Dixon, Carlon v., 12 Or. 144, Dixon, Carlon v., 14 Or. 29ri, Doble, Bowles v., 11 Or. 474. Doctor Jack v. Territory, 2 W. T. 101; 181, 183, 185, 189, 272, 31.2, 364, 369, 372. Dodd V. Denny, 6 Or. 156; 91, 450, 561. Doddv. Dodd, 14 Or. 338; 221, 239. Dodge V. Marden, 7 Or. 456; 399, 568. Dodsou, State v., 4 Or. 64. Dolan V. Barnard, 5 Or. 390; 122, 535, Dolph V. Barney, 5 Or. 191; 5, 27, 64, 206, 210, 224, 238, 240, 242, 245, 247, 257, 275, 276, 303, 336, 346, 3.50, 436, 4S1, 484, 488, 495, 513, 533, 548, 549. Dolph V. Nickura. 2 Or. 202; 33, 40, 49. Table of Cases. CQI Donegan v. Murphy, 6 Or. 43G; 57, 467. Donica, Jloorhouse v., 13 Or. 435. Donica, Moorliouse v., 14 Or. 430. Donis V. Smith, 7 Or. 2(37; 242, 424. Doscher v. Blackistou, 7 Or. 143; 19, 255, 287. Doscher v. Blackiston, 7 Or. 403; 218, 336, 337. Doty, State v., 5 Or. 491. Dougherty, State v., 4 Or. 200. Douglas Co., Buruett v., 4 Or. 388, Douglas Co., Howe v., 3 Or. 488. Douglas Co., ]Minard v., 9 Or. 206. DouLrlas County Road Co. v. Abraham, 5 Or. 318; 161, 200, 230, 2.52, 305. Douglas County Roail Co. v. Canyon- ville an > Leonard v. Territory, 2 W. T. 381; 170, 177, 181, 183, 185, 188. 256.' 308, 309, 312, 302. Leonard, Aikiu v., 1 Or. 224. Leonard, Sfcite v., 3 Or. 157. Leonede v. United States, 1 W. T. 153. Lesclii V. Territory, 1 W. T. 13; 84, 129, 165, 172, 175, 187, 311, 3C1, 372, 428, 529, 534. 530. 636 Table of Cases. Lererich v. Frank, 6 Or. 212; 261, 519, 576. Levy V. Riley, 4 Or. 392; 9, 13, 32. Lewis V. Host, 2 W. T. 402; 55, 508. Lewis V. Lewis, 4 Or. 177; 101, 205, 235, 35G, 400, 497. Lewis V. Lewis, 4 Or. 209; 38, 48. Lewis V. Lewis, 5 Or. 169; 114, 400, 497. Lewis V. McClure, 8 Or. 273; 192, 246, 568. Lewis, Adkins v., 5 Or. 292. Lewis, Cheuowetli and Johnson v., 9 Or. 1.50. Lewis, Glaze v., 12 Or. 347. Lewis, Russell v., 3 Or. 380. Lewis, Russell v., 5 Or. 292. Lewis, Seattle Coal Co. v., 1 W. T. 488. Lewis County v. Hays and Kennedy, 1 W. T. 109; 122, 307. Lichtenstein v. Mellis, 8 Or, 464; 555. Liebe, Beaconnon, v. , 1 1 Or. 443. Life Insurance Co., Buford v., 5 Or. 334. Light, Pincus and Packscher v., 1 W. T. 511. Lindley v. Wallis, 2 Or. 203; 40. Linn County Woolen Co., Monteith v., 2 Or. 277. Linn County, Crawford v., 11 Or. 482. LinnviUe v. Smith, Or. 202; 316, 482, 558. Locks Co., Commissioners v., 6 Or. 219. Logus, Hosford v., 13 Or. 130. Logus, jMcGuire v. , 1 1 Or. 233. Logus, Whittier, Fuller, & Co. v., 13 Or. 546. Long V. Sharp, 5 Or. 438; 32, 54, 334, 504. Long, Hay den v., 8 Or. 244. Long and Spaur v. Lander, 10 Or. 175; 64, 67, 264, 363, 574, 577. Looniis, Farnum v., 2 Or. 29. Loomis, Ramsey v., 6 Or. 367. Lope, Bartel v., 6 Or. 321. Lord, Brown v., 7 Or. 302. Love V. Love, 8 Or. 23; 222, 482. Love, Kahn v., 3 Or. 206. Lowenl)erg, N. P. Terminal. Co. v., 11 Or. 286. Lownsdale v. Portland, 1 Or. 382; 238, 241, 335, 477, 479, 531. Lownsdale v. City of Portland, 1 Or. 397; 199, 210, 241, 246. Lownsdale v. Hunsaker, 2 Or. 101; 135, 508, 509. Lownsdale, Smith v., 6 Or. 78. Lucas, Roberta v., 1 W. T. 205, Luce V. Isthmus Transit R'y Ca, 6 Or. 125; 23, 65, 105, 150, 473, 491. Ludwick V. Watson, 3 Or. 256; 133, 433, 523. Luhrs V. Sturtevant, 10 Or. 170; 115, 307, 433, 434. Lung Louis & Co. v. Brown, 7 Or 326; 25, 142, 194. Lurch, State v., 12 Or. 95. Lurch, State v., 12 Or. 99. Lurch, State v., 12 Or. 104. Luse V. Luse, 9 Or. 149; 38. Lyons v. Bain, 1 W. T. 482; 32, 35, 50, 84, 244, 336, 342. Lyon3, Nicolai v., 6 Or. 457. Lyon, Nicolai v. , 8 Or. 56. Lytle V. Territory, 1 W. T. 435; 37, 42, 176, 188, 312, 339. Mack V. City of Salem, 6 Or. 275; 114, 414, 416, 423, 431, 462. Mackey v. Olssen, 12 Or. 429; 58, 195, 554. Mackey, State v., 12 Or. 154. Mackintosh v. Reiiton, 2 W. T. 121; 139, 488. Madden, Wolcott v., 10 Or. 370. Maddock, Wilson v., 5 Or. 480. Maddocks, Kellogg v., 1 W. T. 407. Madison v. Madison, 1 W. T. 60; 34, 69, 216, 219, 221, 338, 360, 444, 474. Magoon, Davenport v., 13 Or. 3. Mahaffcy, Alberson v., 6 Or. 412, Mah Jim, State v., 13 Or. 235. Manaudas v. Heilner, 12 Or. 335; 404. Manaudas v. Mann, 14 Or. 450; 6, 209, 210, 226, 432, 465. • Manchester, McKilver v., 1 W. T, 255. Manciet, Whitlock v., 10 Or. 106. Mann v. Flanagan. 9 Or. 425; 447. Mann, State v., 2 Or. 238. Mann v. Young, 1 W. T. 454; 5, 6, 35, 37, 46, 59, 206, 430, 458. Mann, Manaudas v., 14 Or. 450. Manning v. Klippel, 9 Or. 367; 126, 283, 532. Manning, Horrell v., 6 Or. 413. Manning, Montgomery v., 1 W. T. 434. Marden, Dodge v., 7 Or. 456, Marion Co. , Johns v. , 4 Or. 46. Marks & Co. v. Crow, 14 Or. 382; 7, 59, 214, 239, 240, 250, 267, 296, 536. Marlinv. T'Vault, 1 Or. 77; 479. , Marooney v. McKay, 3 Or. 372; 113, 373, 382, 537. Marsh v. Perrin, 10 Or. 364; 292, 320, 344. Marsh v. Trullin^er, 6 Or. 356; 193, 198, 269, 433, 482. Marstou, CMoi-d v., 14 Or. 426. Table op Cases. 637 Martin v. Martin, 14 Or. 165; 34, 59, 240, 404. Martiu, Kul)li v., 5 Or. 430. Marx aiul Jorgeuscu v. Schwartz, 14 Or. 177; 30, GJ, 293, 300, 3G5, 450. Mason, Davis v., 3 Or. 154. Ma.3on, Ladil and Tilton v., 10 Or. 308. Mason, Watkins v., 11 Or. 72. Mastick, Wood v., 2 W. T. 04. Matasco V. Hughes, 7 Or. 39; 91^ 248, 209. Mathews v. Eddy, 4 Or. 225; 205, 270, 279, 405. Matlock, Kirk v., 12 Or. 319. Matter of .Schneider, 1 1 Or. 288. Maxon, Hazard v., 1 W. T. 5S4. Mayer, Rudolph v., 1 W. T. 133. Maynard v. Hill, 2 W. T. 321 ; 122, 129, 130, 132, 210, 395, 390, 481, 483, 4S4. Maynard v. Valentine, 2 W. T. 3; 122, 129, 130, 132, 210, 395, 390, 483. Mays V. Foster and Robertson, 13 Or. 214; 153. McAllister v. Territory, 1 W. T. 300; 45, 00, 182, 185, 203, 272, 310, 312, 323, 348, 301, 302, 428, 503. McAllister, Baker and Hamilton v., 2 W. T. 48. McAllister, Driver v., 1 W. T. 307. McAlmoud v. Adams, 1 W. T. 230; 42. McCall V. Elliot, 3 Or. 138; 22, 249. McCalla v. Multnomah Co., 3 Or. 424; 103, 158, 304, 421, 500. McCalley, Jacobs v., 8 Or. 124. McCann v. Oregon R'y & Nav. Co., 13 Or. 455; 244, 482, 509, 571. McClane, Boon v., 2 Or. 331. McCIane v. Thomas, 1 Or. 288; 140. McClung, Stewart v., 12 Or. 431. McClure, Lewis v., 8 Or. 273. McCullough V. Hellman, 8 Or. 191; 89, 3.37, 541. McCormack, State v. , 8 Or. 236. McCormick v. Blanchard, 7 Or. 232; 520. McCormick v. W. W. & C. R. R. R. Co., 1 W. T. 512; 31, 35, 30, 427, 429. McCown v. Hannah, 3 Or. 302; 224, 440, 459, 408. McCoy v. Ayres, 2 W. T. 307; 238, 444, 575. MfcCoy V. Ayres, 2 W. T. 203; 12, 22, 358, 375. McCoy V. Bayley, 8 Or. 190; 259. McCoy V. Bayley, 8 Or. 259. McCracken v. Swartz, 5 Or. 62; 04, 274, 341. ' McCraith, Eakin v.. 2 W. T. 112. j McCullough, Friendly v., 9 Or. 109. McCuUy V. Swackhamcr, Or. 438; 247, 291, .30.3, 509, 510. , McDaniel, Burch v., 2 \V. T. 58. I McDauiul, Ifutlmau v., 1 Or. 259. McDaniel, Rami) v., 12 Or. 108. McDearmid v. Foster & Co., 14 Or. 417; 380. McDonald v, Cruson, 2 Or. 258; 56, 286. McDonald v. Cruzen, 2 Or. 259; 154, 189, 330. McDonald v. Evans, 3 Or. 474; 154, 498. McDonald, Lancaster v., 14 Or. 264. McDonal.l, Oregon v., 8 Or. 113. Mc(rinness, .Tohnson v., 1 Or. 2".I2. McEwen v. Portland, 1 Or. 300; 224, 260, 404. McEwan, Wilson v., 7 Or. 87. McFadden v. Friendly, 9 Or. 222; ]0(), 134, 130, 473. McFarland, Kendall v., 4 Or. 292. McGilvrcy, McMuUen v., 1 W. T. 513. McGowan v. Petit, 1 W. T. 514; 35, 55, 352. McGrew, Cooper v., 8 Or. 327. McGrew, Sears v., 10 Or. 48. McGrew, Mulkey v., 2 W. T. 259. McGuire v. Logus, 11 Or. 233; ;'.S;J. Mclntyre v. Kamm, 12 Or. 253; 5, 204, 209, 225, 250, 432, 531. McKay, Freeman v., Or. 449; 38, 05, 222, 350. McKay, Marooney v. , 3 Or. 372. McKee, Quigley v., 12 Or. 22. McKilver v. Mauchester, 1 W. T. 255; 420, 428, 429. McKinmore, State v., 8 Or. 207. McKinney v. Baker, 9 Or. 74; 75, 440. McKinney, Fox, Baum, & Co. v., 9 Or. 493. McKinuon, State ex rel. Mahoney v., 8 Or. 485. McKinnon, State ex rel. Mahoney v., 8 Or. 487. McKinnon, State ex rel. Mahoney v., 8 Or. 493. McLaiie, Charman v., 1 Or. 339. McLaugldin v. Hoover, 1 Or. 31, 524, 531, 53.3. McLearu, Giiston v., 3 Or. 389. I McMahan v. McMahan, 9 Or. 525; ! 217. I McMillan, Gee v., 14 Or. 208. McMullan v. Abbott, 1 Or. 258; 86. McMuUen v. McGilvrey, 1 W. T. 513; 50. JMcMullcn, Sheridan v., 12 Or. 150. 638 Table of Cases. McNear & Co., Blumberg v., 1 W. T. 141. McRae V. Daviner, 8 Or. 63; 276, 280. McWhirter v. Brainard, 5 Or. 426; 121, 123, 164, 228, 319, 393, 528. Meacham Arms Company v. Swartz, 2 W. T. 412; 107, 297, 315, 322, 464. Meads, Hathaway v., 11 Or. 66. INIeek, Graham v., 1 Or. 325. Meeker v. Gardella, 2 W. T. 355; 40, 52, 53, 60. Meeker v. "Wren, 1 W. T. 73; 28, 454. Meigs V. Keach, 1 W. T. 305; 101, 117, 197, 487, 498, 501.. Meigs and Talbot v. Northerner, Steamship, 1 W. T. 78; 16, 197, 426. Mellis, Lichtenstein v., 8 Or. 464. INIellon, Hill v., 3 Or. 542. Merchant v. Humeston, 2 W. T. 433; 384, 385. Merriman v. Morgan, 7 Or. 68; 303, 392. Merritt, Kenworthy v., 2 W. T. 155. Mctzger, Parker v., 12 Or. 407. Mier v. Coflfeu, 3 Or. 426. Milarkey v. Foster, 6 Or. 379; 115, 193, 257, 305, 463, 555. Miles V. Miles, 6 Or. 266; 204, 294 JNIiles, Lander v., 3 Or. 35. Miles, Lauder v., 3 Or. 40. Millard, Provost v., 3 Or. 370. Miller V. Ausenig, 2 W. T. 22; 211, 403. Miller v. Oregon Paper Mfg. Co., 3 Or. 24; 147, 150, 276, 290, 333, 471. Miller v. Vaughn, 8 Or. 333; 212, 22.3, .399, 508. Miller Bros. v. Bank of British Co- lumbia, 2 Or. 291; 150, 276, 290, 333, 345, 439. Miller, Bouser v., 5 Or. lia Miller, Hays v., 1 W. T. 143. Miller, Moore v., 6 Or. 254. Miller, Moore v., 7 Or. 486. Miller, Wattier v., 11 Or. 329. MiUer & Co., Williams v., 1 W. T. 88. Mills V. Learn, 2 Or. 215; 284, 285, 304. Minard v. Douglas County, 9 Or. 206; 306. Minter v. Durham, 13 Or. 470; 205, 225, 271, 398, 442, 548, 549, 550. Minto V. Dclaney, 7 Or. 337; 102, 109, 486, 567. Miskel V. Stone, 1 W. T. 229; 42, 50. Misner v. Knapp, 13 Or. 135; 292, 564. Mitchell V. Campbell, 14 Or. 454; 334, 343, 344, 470, 476. Mitchell, Barr v., 7 Or. 346. Moffit, Burton v., 3 Or. 29. Moffit V. Coffin, 3 Or. 426; 205. Mogan V. Thompson, 13 Or. 230; 46. Monastes v. Catlin, 6 Or. 119; 124, 161, 301, 353, 354. Monroe v. Hussey, 1 Or. 188; 77, 86, 105, 294, 509. Monroe v. Northern Pacific Coal Min- ing Co., 5 Or. 509; 56, 63, 64, 140, 449, 460, 470. Monteith v. Eagle Woolen Co., 2 Or. 277; 22. Monteith, Parker v., 7 Or. 377. Montgomery v. Manning, 1 W. T. 434; 335, 5.39. Montgomery v. Multnomah E,'y Co., 11 Or. 344; 74, 285, 286, 289, 304. Monumental Gold and Silver Mining Co., Brundage v., 12 Or. 322. Monumental Mining Co., Durham v., 9 Or. 41. Mooney, Holcombv., 13 Or. 503. Mooney, Keyes v., 13 Or. J 79. Moore, In the Matter of, 1 Or. 179; 381 Moore v. Fields, 1 Or. 317; 31, 356, 477. Moore v. Floyd, 4 Or. 101; 247, 249, 278, 291, 363, 510, 516. Moore v. Floyd, 4 Or. 260; 32, 336, 342. Moore v. Fuller, 6 Or. 272; 5, 257, 316, 403, 409. Moore, Hurd v., 2 Or. 85. . Moore v. Knott, 12 Or. 260; 447. Moore v. Knott, 14 Or. 35; 256, 448, Moore v. Miller, 6 Or. 254; 88, 89. Moore v. Miller, 7 Or. 4SG; 91, 249. Moore, Murch v., 2 Or. 189. Moore v. Packwood, 5 Or. 325; 32, 552. Moore v. Thomas, 1 Or. 201; 208, 210, 221, 403, 408. Moore v. Walla Walla, 2 W. T. 184; 21, 237, 244, 421, 435. Moore v. Willamette Trans. & Locks Co., 7 Or. 355; 27, 150, 225, 507. Moore v. Willamette Trans. & Locks Co., 7 Or. 359; 152, 154, 203, 211, 277, 287, 354, 495, 571. Moore, Altree v., 1 Or. 350. Moore, Brown v., 3 Or. 43.5. Moore, Olney v., 13 Or. 238. Moorehouse, Gird v., 2 Or. 53. Moorhouse v. Donica and Cox, 13 Or. 435; 30, 55. Moorhouse v. Donaca, 14 Or. 430; 61, 69, 116, .328, .367, 499, 500. Moorhouse, Clifi"ord v., 14 Or. 426. Moorey, Ward v., 1 W. T. 104. Table of Cases. 639 Iklorcland v. Bratl^, 8 Or. 303; 257, 317, 571, 572. Morgan v. Hcaderaoiv- 2 W. T. 3C7; 201). Morgan, Merriman v. , 7 Or. C8, Morin, Oilell v., 5 Or. 90. Morris v. Perkins, Or. 350; 65, 365. Moirii, Goodwin v., 9 Or. 322. Morris, Hondorsou v., 5 Or. 24. Morris, Pin v., 1 Or. 230. Morrison v. Crawford, 7 Or. 472; 45, 78, 194. Morrissy, Atkinson v., 3 Or. 332. Morrow, WiUey v., 1 W. T. 474. Morrow Co. v. Hcndryx, 14 Or. 397; 122, 159, 395, 544. Moser v. Jenkins, 5 Or. 447; 21, 25, 56, 459, 4C.9, 498. Moses, Gove v., 1 W. T. 7. Mosier, Craig v., 2 Or. 323. Mosier, 0. R. & N. Co. v., 14 Or. 519. Mossv. Cully, 1 Or. 147; 90, 113, Moss, Arthur v., 1 Or. 193. Mosseau v. Veeder, 2 Or. 113; 360. Moy Looke, State v., 7 Or. 54. Mulkcy V. McGrew, 2 W. T. 259; 51. Mulkcy, Swift v., 14 Or. 59. Mullen V. Mullen, 1 W. T. 192; 59, 70, 339, 375, 391. Multnomah County v. Adams, 6 Or. 114, 123. Multnomah County v. Knott, 6 Or. 279; 285, 287, 355, 373. Multnomah Co. v. Slikcr, 10 Or. 65; 121, 1-24, 305, 522. Multnomah Co. v. State, 1 Or. 358. Multnomah Co., Thompson v., 2 Or. 34. Multnomah Co., Trainor v., 2 Or. 214. Multnomah Co., Adams v. 6 Or. 116. Multnomah Co., Ankeny v., 3 Or. 386. Multnomah Co., Ankeny v., 3 Or. 388. Multnomah Co., Ankeny v., 4 Or. 271. Multnomah Co., City of East Port- V., 6 Or. 62. Multnomah Co., Cook v., 8 Or. 170. Multnomah Co., Daly v., 14 Or. 20. Multnomah Co., Lanuahau v., 3 Or. 187. Multnomah Co., McCalla v., 3 Or. 424. Multnomah Co., State v., 13-Or.287. Multnomah Co., Terwilliger v., 6 Or. 295. Multnomah Co., Wetmore v., C Or. 463. Multnomah R'y Co., Budd v., 12 Or. 271. Multnomah R'y Co., Hackett v., 12 Or 124; 286. Multnomah R'y Co., Montgomery v., llOr. 344. Multnomah Street R'y Co., v. Harris, 13 Or. 198; 274, 296. Mulvancy, Tcnny v., 8 Or. 129. Mulvancy, Teuny v., 8 Or. 513. Mulvaney and Bemis, Tonny and Mc- Kenzic v., 9 Or. 405. Mumfcrd v. Hewall, 11 Or. 67; 127, 129, 403, 529, 543. Munds, State v., 7 Or. 80. March v. Moore, 2 Or. 189; 339, 341, 347, 525. Murne v. Schwabacher Bros. & Co., 2 W. T. 130; 7, 166, 281, 333, 335, 360, 444. Murnc v. Schwabacher Bros. & Co., 2 VV. T. 191; 24, 237, 281, 444. Murphy, Donegan v., 6 Or. 436. Murphy v. Sears and Holman, 1 1 Or. 127; 490. Murphy, ^^'^litley v., 5 Or. 328. Murray v. Murray', 6 Or. 26; 2, 14, 213, 269, 347, 380, 395, 440, 482. Murray v. Murraj-, 6 Or. 17; 45, 247, 252, 346, 363, 366, 471. Murray v. Oliver, 3 Or. 539; 138, 324, 560. Murray, State v., 11 Or. 413. Murton, Stephens v., 6 Or. 193. Musgrove, Dray v., 5 Or. 185. Musgrove v. Bonser, 5 Or. 313; 208, 430. Myer v. Beal, 5 Or. 130; 400, 526. Myers v. Warner, 3 Or. 212; 226, 328, 356, 468. Myers, Kitcherside v., 10 Or. 21. Myers, Warner v., 3 Or. 218. Myers, Warner v., 4 Or. 72. ^lyrick, Goodman v., 5 Or. 65. Naylor v. Beeks, 1 Or. 216; 251, 304. Neely, King County v., 1 W. T. 241. NefiF, Wells v., 14 Or. Oij. Neil v. Tolman, 12 Or. 289; 243, 335, 338, 502, 569. Neil v. Wilson, 14 Or. 410; 452, 522. Nelson v. Oregon R'y & Nav. Co., 13 Or. 141; 58, 68, 195, 371. Nelson, Poppleton v., 10 Or. 437. Nelson, Poppleton v., 12 Or. 'MO. Ncppach V. Jordan, 13 Or. 246; 38, 39, 54. Nesqually Mill Co. v. Taylor, 1 W. T. 1;69, 80, 318,345. Nevel, Stingle v., 9 Or. 02. Newberg and Abrams v. Farmer, 1 W. T. 182; 70, 158, 429, 454, 460, 461, 469. Newby v. Rowland, 11 Or. 133; 29, 61, 64, 67, 225. Newby v. Territory, 1 Or. 163; 367, 369, 426, 506. Newby, Yamliill Bridge Co. v., 1 Or. 173. 640 Tajble of Cases. Newhouse v. Newhouse, 14 Or. 290; 219. New Idrian C. M. Co., Jackson v., 10 Or. 157. Newsom v. Greenwood, 4 Or. 119; 6, 497, 531, 534. Newsom, Settlemier v., 10 Or. 446. . Newton v. Spencer, 3 Or. 548; 480, Newton, Sires v., 1 ^V. T. 356. Newton, Steeples v., 7 Or. 110. New York Life Ins. Co., Buford v., 5 Or. 334. Nichols V. Gage, 10 Or. 82; 143, 144. Nicholson, Stannis v., 2 Or. 332. Nickels v. Griffin, 1 W. T. 374; 15, 16, 84, 131, 165, 351, 397, 475, 476, 507. Nickerson, Webb v., 11 Or. 382. Nicklin V. Betts Spring Co., 11 Or. 406; 403. Nicklin V. Hobin, 13 Or. 406; 34^ 158, 338, 350, 351. Nickum, Dolph v., 2 Or. 202. Nicolai v. Lyon, 8 Or. 56; 104, 119, 291, 409. Nicolai v. Lyon, 6 Or. 457; 119. Nine V. Starr, 8 Or. 49; 134, 139, 301, 319 439. Nodine v. Union, 13 Or. 587; 175, 420, 454. Noland V. Costello, 2 Or. 57; 122, 354, 372 535. Norman v. Zieber, 3 Or. 197; 2, 72, 78, 113, 290, 302, 349, 354, 356, 453, 459, 540. Normandin v. Gratton, 12 Or. 505; 4, 271. Norris, Hume v., 5 Or. 478. Norris, Territory v., 1 Or. 107. Northcut V. Lemery, 8 Or. 316; 336, 346, 350, 351, 539. Northcutt, Browti v., 14 Or. 529. Northerner, Steamship, Resolute, Steamtug, v., 1 W. T., 78. Northener, Steamship, Meigs v., 1 W. T. 78. North Pacific Trans. Co., Oliver v., 3 Or. 84. Northern Pacific Coal Mining Co., Monroe v., 5 Or. 509. Northern Pacific Express Co., Ben- nett v., 12 Or. 49. Northern Pacific Lumbering and Mfg. Co. V. East Portland, 14 Or. 3; 139, 244, 413, 418. Northern Pacific R. R. Co. v. Wells, Fargo, & Co., 2 W. T. 303; 36, 37, 322. Northern Pacific Terminal Co. v. City of Portland, 14 Or. 24; 247, 252, 357, 413, 416, 418, 419. Northern Pacific Terminal Co. v. Low- enberg, 11 Or. 286; 39, 48, 53. Northrop v. City of Portland, 3 Or. 258; 135, 249. Northwest Publishing Co., Dunniway Publishing Co. v., 11 Or. 322. Northwestern Stage Co., White v., 5 Or. 99. Norton v. Harding, 3 Or. 361; 343, 349. Norton v. Winter, 1 Or. 47; 298, 347. Norton v. Winter, 1 Or. 97; 28, 98. Norton, Allen v., 6 Or. 344. Norton, Winter v., 1 Or. 42. Noyes v. Staufi', 5 Or. 455; 253, 257, 269, 523, 562. Nurse v. Justus, 6 Or. 75; 155. Nye, Richards v., 5 Or. 382. Odell V. Campbell, 9 Or. 298; 346, 350, 351, 539. Odell V. Gotfrey, 13 Or. 466; 34, 49, Odell V. Morin, 5 Or. 96; 520. Odell, State v., 8 Or. 30. Officer, State v., 4 Or. 180. Oglesbee, Yesler v., 1 W. T. 604. O'Harra v. City of Portland, 3 Or. 525; 414, 416, 422. O'Keefe v. Weber, 14 Or. 55; 7, 123, 128, 170, 297, 530, 532. O'Kelly V. Territorj^, 1 Or. 51; 61, 121, 189, 190, 328, 358, 360, 369, 552. Olds V. Carey, 13 Or. 362; 64, 65, 84, 100, 117, 196, .321, 462, 46.3. Olds and King, Salmon v., 9 Or. 488. OLeary v. Fargher, 11 Or. 225; 56, 64, 474, 496. Oliver v. Harvey, 5 Or. 360; 38, 352, 467, 469. Oliver, Murray v., 3 Or. 539. Oliver v. North Pacific Trans. Co., 3 Or. 84; 22, 94, 192, 396, 421. Olney v. Moore, 13 Or. 238; 487. Olney, Stark v., 3 Or. 88. Olssen, Mackey v., 12 Or. 429. Olympia, Hadlan v., 2 W. T. 340. Olympia, Hutchinson v., 2 W. T. 314. ONeil, State v., 7 Or. 141. O'Neil, State v., 13 Or. 183. O'Neill, City of Portland v., 1 Or. 218. Opitz V. Winn, 3 Or. 9; 298, 372. Oregon and California R. R. Co. v. Barlow, 3 Or. 311; 192, 232, 268, 471. Oregon & Cal. R. R. Co. v. Potter, 5 Or. 228; 87, 133, 138. Oregon & Cal. R. R. Co., Caro Bros. v., 10 Or. 510. Oregon & Cal. R. R. Co., Cogswell v., 6 Or. 417. Oregon & Cal. R'y Co., Davidson v., 11 Or. 136. Oregon & CaL R. R. Co., Davis v., 8 Or. 172. Table of Cases. 641 Oregon & Cal. R. R. Co., Holstine v.. 8 Or. 1G3. Oregon & Cal. R. R. Co., Honeyman v., 13 Or. 352. Oregon Cascades R. R. Co. v. Bailey, 3 Or. 1G4; 1, 147, 229, 230, 231, 2G3, 2G8, 3G7, 471, 54G. Oregon Cascades R. R. Co. v. Oregon Steam Nav. Co., 3 Or. 178; 19, 231 2G8, 3G7, 3G8, 3GD, 42G, 427, 4G4. Oregon Central R. R. Co. v. Scofgin, 3 Or. 161; 1, 25,26, 133, 147, 151, 290, 455, 457, 459. Oregon Central R. R. Co., State v.. 2 Or. 255. Oregon Central R. R. Co. v. Wait, 3 Or. 91; 1, 25, 101, 192, 232, 284, 457, 458, 475, 491. Oregon Central R. R. Co. v. Wait, 3 Or. 42S; 154, 232, 471, 550. Oregon City Mfg. Co., Stone v., 4 Or. 52. Oregon Iron Co. v. TruUinger, 2 Or. 311; 207, 5G6. Oregon Iron Co. v. Trullenger, 3 Or. 1; 198, 207, 210, 5G6. Oregon Iron and Steel Co., Weiss v.. 13 Or. 496. Oregon Paper Mfg. Co., Miller v., 3 Or. 24. Oregon R'y & Nav. Co., Cassida v., 14 Or. 551. Oregon R'y Co. v. City of Portland, 9 Or. 231; 200, 230. Oregon R'y & Nav. Co. v. Galliher, 2 W. T. 70; 45, 47, 67, 70, 71, 366. Oregon R'y & Nav. Co. v. Gates, 10 Or. 514; 79, 236, 298, 343. Oregon R'y & Nav. Co. v. Mosier, 14 Or. 519; 196, 233, 287, 492. Oregon R'y & Nav. Co. v. 0. R. E. Co., 10 Or. 444; 223, 231, 233, 270, 331, 471, 551. Oregon R'y & Nav, Co., Hughes v., 11 Or. 437. Oregon R'y & Nav. Co., McCann v., 13 Or. 455. Oregon R'y & Nav. Co., Nelson v., 13 Or. 141. Oregon R'y & Nav, Co., Prettyman v., 13 Or. 341. Oregon R'y & Nav. Co., Scott v., 14 Or. 211. Oregon R'y & Nav. Co., Sullivan v., 12 Or. 392. Oregon R'y & Nav, Co., Walsh v., 10 Or. 250. Oregon R'y & Nav. Co., Willis v., 11 Or. 257. Oregon Real Estate Co., 0. R. N. Co. v., 10 Or. 444. Ob. Dig.— U Oregon Steam Nav. Co. v. City of Portland, 2 Or. 81; 411, 545. Oregon Steam Nav. Co. v. Hale, I W. T. 283; 139. Oregon Steam Nav. Co. v. Wasco County, 2 Or. 20G; 161, 545, 547. Oregon Steam Nav. Co., Johnson v., 8 Or. 35. Oregon Steam Nav. Co., Oregon Cas- cades R. R. Co. v., 3 Or. 164. Oregon Steam Nav. Co., Oregon Cas- cades R. R. Co. v., 3 Or. 178. Oregon, Territory of, v. Coleman, 1 Or. 191; 326. Oi-egou, Territory of. Hart v., 1 Or. 122. Oregon, Territory of, v. King, 1 Or. 106; 94, 118. Oregon, Territory of, Latshaw v., 1 Or. 140. Oregon, Territory of, v. Latshaw, 1 Or. 146; 426. Oregon, Territory of, Newby v., 1 Or. 163. Oregon, Territory of, v. Norris, 1 Or, 107; 94, 118. Oregon, Territory of, O'Kelly v., 1 Or. 51. Oregon, Territory of, ex rel. Ken- nedy V. Pyle, 1 Or. 149; 289. Oregon, Territory of. Wood v., 1 Or. 223. Oregon, Territory of. Young v., 1 Or. 213. Oregonian R'y Co. v. Bridwell, 1 1 Or, 282; 232, 371. Oregonian R'y Co. v. Hill, 9 Or. 377; 121, 126, 231. 2.32. Oregonian R'y Co. v. Wright, 10 Or. 162; 45, 61, 62, 134, 258, 348, 428. Oregonian R'y Co., Branson v., 10 Or. 278. Oregonian R'y Co., Branson v., 11 Or. 161. Oregonian R'y Co., Hughes v., 11 Or. l.-)8. O'Riley v. Wilson, 4 Or. 96. Orton V. Orton, 7 Or. 478; 105. Osborn v. Graves, 11 Or. 526; 50, 68, .348, 454, 496, 497. Osborn, Sherman v., 8 Or. 66. Osborn Co., Withamv., 4 Or. 318, Osborne, Failing v., 3 Or. 498. Oswego Iron Co., Shaw v., 10 Or. 371. Otchin, Tolmie v., 1 Or. 95. Otis, Vandolf v., 1 Or. 153. Ott, Hadlau v., 2 W. T. 165. Ottenlieimer, Cohen v., 13 Or. 220. Ottenheimer, Rugh v., 6 Or. 231. Pacific University, Tyler v., 14 Or. 485. Packird, State v., 4 Or. 157. 642 Table of Cases. Packwood, Moore v., 5 Or. 325. Paddock v. Hume, 6 Or. 82; 97, 99, 540. Page V. Finley, 8 Or. 45; 65, 262, 365, 576. Page V. Rodney, 2 W. T. 461; 31, 62, 63, 427, 428. Page V. Smith, 13 Or. 410; 27, 61, 80, 243, 348. Page, Bank of British Columbia v., 6 Or. 431. Page, Bauk of British Columbia v., 7 Or. 454. Page, Holbrook v., 3 Or. 374. Page, Wardwell v., 9 Or. 517. Page & Co. V. Grant, 9 Or. 116; 116, 295. Palmer v. United States, 1 W. T. 5; 69, 187. Palmer v. State, 2 Or. 66; 167, 387, 533. Palmer, Rich v., 6 Or. 339. Paquctt, Hedges v., 3 Or. 77. Parker v. Dacres, 2 W. T. 362; 43. Parker v. Dacres, 2 W. T. 439; 277, 278, 404, 407, 528. Parker v. Denney, 2 W. T. 176; 39, 44, 47. Parker v. Denny, 2 W. T. 360; 37, 40, 50, 52, 352. Parker v. Metzger, 12 Or. 407; 20, 526, 527. Parker v. Monteith, 7 Or. 277; 63, 64, 115, 262, 269, 514. Parker v. Rogers, 8 Or. 183; 95, 207, 482, 480, 568, 571. Parker v. Taylor, 7 Or. 435; 101, 242, 320, 485, 486, 567, 570. Parker, Goddard v., 10 Or. 102. Parker, Farley v., 4 Or. 269. Parker, Farley v., 6 Or. 105. Parker, Hays v., 2 W. T. 198. Parker, Shively v., 9 Or. 500. Parker, Turner v., 14 Or. 34a Parmenter, Pettyjohn v., 10 Or. 341; 320, 503. Parmenticrv. Pater, 13 Or. 121; 223, 293, 553. Parrish v. Stephens, 1 Or. 59; 199. Parrish v. Stephens, 1 Or. 73; 319, 433. Parrish, Elkins v., 8 Or. 330. Partlow V. Singer, 2 Or. 307; 90, 327, 449. Pater, Parmentier v., 13 Or. 121. Patterson, Holladay v., 5 Or. 177. Patterson, Hopwood v., 2 Or. 49. Patterson, Howe v., 5 Or. 353. Patterson & Co., Taylor v., 5 Or. 12i. Patton, Dearl)orn v., 3 Or. 420. Patton, Dearborn v., 4 Or. 58. Patton, Young v., 9 Or. 195. Pease v. KeHy, 3 Or. 417; 386, 408. Pease v. Hannah, 3 Or. 301; 28, 113, 224, 457. Pencinse v. Burton, 9 Or. 178; 48, 57. People's Trans. Co., Bequette v., 2 Or. 200. People's Trans. Co., Kelly v., 3 Or, 189. Pepin, Brown Bros. & Co. v., 1 W. T. 205. Perham, State v., 4 Or. 188. Perkins, Edwards v., 7 Or. 149. Perkins, Gaunt v., 8 Or. 354. Perkins, Morris v. , 6 Or. 350. Perkins, Stewart v., 3 Or. 508, Perrin, Marsh v., 10 Or. 364. Perrin, Willamette Falls Co. v., 1 Or. 182 Perry V. Stone, 2 W. T. 464; 55. Peterson v. Foss, 12 Or. 81; 50, 402, 470. Petit, McGowan v., 1 W. T. 514. Retrain, Adams v., 11 Or. 304. Pettengill, Ramsey v., 14 Or. 207. Pettyjohn, Parmenter v., 10 Or. 341. Peyser v. Cole, 11 Or. 39; 82, 87. Phelps V. Steamship City of Panama, 1 W. T. 518; 17, 131, 197, 314, 315, 360, 444, 473. Phelps V. Steamsliip City of Panama, 1 W. T. 615; 15, 18, 214, 475. Phillippi V. Thompson, 8 Or. 428; 19, 102, 225, 248, 432, 465. Phillippi, Groner v. , 3 Or. 484. Phillippi, Schirott v., 3 Or. 484. Phillips V. Thorp, 10 Or. 494; 204, 219, 220, 401. Philomath College v. Hartless, 6 Or. 158; 87, 134, 150, 473. Phinney v. Hubbard, 2 W. T. 369; 198, 294, 512. Phinney, Waterman and Katz v., I W. T. 415. Phipps V. Kelly, 12 Or. 213; 234, 236, 315, 317. Phy, Stewart v., 11 Or. 335. Pickard, Jette v., 4 Or. 296. Pickle, Frank v., 2 W. T. 55. Pierce Co., Puget Sound Agricultural Co. v., 1 W. T. 159. Pierce Co., Puget Sound Agricultural Co. v., 1 W. T. 74. Pierce Co., Puget Sound Agricultural Co. v., 1 W. T. 76. Piette, Crandall v., 1 Or. 226, Pike, Saunders v., 6 Or. 312. Pin V. Morris, 1 Or. 230; 335, 480. Pincus and Packscher v. Light, 1 W. T. 511. Ping, WaUa Walla Co. v., 1 W. T, 339. Pitman v. Bump, 5 Or. 17; 525, Table of Cases. 643 Pittinan v. Pittman, 3 Or. 472; 31, 44, 53, -220, 336. Pittman v. Pittman, 4 Or. 298; 124, 314, 315. Pitman, Griffin v., 8 Or. 342. Pitzer V. Russel, 4 Or. 124; 114,340, 347. Plymale v. Comstock, 9 Or. 318; 523. Pomeroy v. Lappeus, 9 Or. 363; 303, 357, 420, 454. Pool V. BuflFum, 3 Or. 438; .3, 571. Poppleton V. Nelson, 10 Or. 437; 38, 48, 54, 442. Poppleton V. Nelson, 12 Or. 349; 560. Poppleton V. Yamhill Co., 8 Or. 337; 125. 292, 503, 504, 545, 546, 548. Poppleton, Belt v., 11 Or. 201. Poppleton, Hoxter v., 9 Or. 481. Poppleton, Williams v., 3 Or. 139. Port Blakeley Mill Co. v. Clymer, 1 W. T. G07; 44, 51. Port Blakeley Mill Co., Wheeler v., 2 W. T. 71. Porter v. Smith, 1 W. T. 608. Porter, Stiuson v., ]2 Or. 444. Portland v. Baker, 8 Or. 356; 108, 115, 142, 320, 412. Portland v. Besser, 10 Or. 242; 97, 118, 120, 126, 254, 282, 283, 416, 436, 565. Portland v. Denny, 5 Or. 160; 118, 123, 172, 28.3, 355, 415, 464. Portland, Garrison v., 2 Or. 123. Portland v. Kamm, 5 Or. 362; 32, 192, 193, 302, 369, 416, 420. Portland v. Kamm, 10 Or. 383; 233, 420. Portland, City of, King v., 2 Or. 146. Portland, City of, v. Lee Sam, 7 Or. 397; 193, 233, 417, 420. Portland, City of, Leland v., 2 Or. 46. Portland, City of, Oregon Steam Nav. Co. v., 2 Or. 81. Portland, City of, v. Schmidt, 13 Or. 17; 170, 388, 412, 413, 532. Portland, City of, v. Stock, 2 Or. 69; 122, 535. Portland, City of, v. Whittle, 3 Or. 126; 200, 416. Portland, City of. Carter v., 4 Or. 339. Portland, City of, Dowell v., 13 Or. 248. Portland, City of, Hallock v., 8 Or. 29. Portland, City of, Lownsdale v. , 1 Or. 381. Portland, City of, Lownsdale v., 1 Or. 397. Portland, City of, McEwen v., 1 Or. 300. Portland, City of. Northern Pacific Terminal Co. v., 14 Or. 24. Portland, City of, Northrop v., 3 Or. 258. Portland, City of, O'Harra v., 3 Or. 525. Portland, City of, O'Neill v., 1 Or. 218; 104, 381, 411. Portland, City of, Oregon Piailway Co. v., 9 Or. 231. Portland, City of, P. & W. V. R. R. Co. v., 14 Or. 188; 231, 41 G, 492. Portland, City of, Selby v., 14 Or. 243. Portland, City of, Strowbridge v., 8 Or. 67. Portland, City of. Van Sant v., 6 Or. 395. Portland Common Council, Simon v., 9 Or. 437. Portland Lumbering and Mfg Co. v. School District No. 1, 13 Or 283. Portland Water Committee, David v., 14 Or. 98. Portland and Willamette Valley R. R. Co. V. City of Portland, 14 Or. 188; 122, 201, 322, 419. Post, Kendall v., 8 Or. 141. Potter, Oregon & Cal. R. R. Co. v., 5 Or. 228. Powell V. Dayton, Sheridan, and Grande Ronde R. R. Co., 12 Or. 488; 138, 140, 143, 203, 508, 550, 551. Powell V. Dajrton, Sheridan, and Grande Ronde R. R. Co., 13 Or, 446; 439, 443, 457, 527. Powell V. Dayton, Sheridan, and Grande Ronde R. R. Co., 14 Or. 22; 58, 59, 380. Powell V. Dayton, Sheridan, and Grande Ronde R. R. Co., 14 Or. 356; 136, 138, 140, 143, 203. Powell, Stephens v., 1 Or. 283. Powers, State v., 10 Or. 145. Prather, Simpson v., 5 Or. 86. Pratt V. King, 1 Or. 49; 251, 328, 494. Prentice, Cook v., 13 Or.. 482. Prescott V. Heilner and Cohen, 13 Or. 200; 195, 371, 454, 499, 500. Prescott, Remillard v., 8 Or. 37. Pressey, Fahie v., 2 Or. 23. Prettyman v. Oregon R'y & Nav. Co., 13 Or. 341; 196. Price V. Knott, 8 Or. 438; 285, 286, 320, 417. Price, Green, & Co. v. Frankel and Lightner, 1 W. T. 33; 15. Prickett v. Cleek, 13 Or. 415; 31, 34, 120, 214, 335, 505, 538. Prindle, Kruse v., 8 Or. 158. Provost V. Millard, 3 Or. 370; 164, 274, 342, 349, 352. Pruden v. Grant County, 12 Or. 308; 159, 163, 504. 644 Table of Cases. Puget Sound Agricultural Co. v. Pierce County, 1 W. T. 75; 332, 353. Puget Sound Agricultural Co. v. Pierce County, 1 W. T. 76; 34. Puget Sound Agricultural Co. v. Pierce County, 1 W. T. 159; 244, 478, 545, 547, 555, 556. Puget Sound Commercial Co. v. Tay- lor, 2 W. T. 93; 16, 197, 426. Puget Sound Iron Co. v. Wortliing- ton, 2 W. T. 472; 28, 40, 47, 52, 55, 61, 71, 333, 367, 454, 455, 458, 459, 473, 524. Pulse V. Hamer, 8 Or. 251; 377, 465, 521, 523. Purdom, Crewson v., 11 Or. 266. Purdom, Ivrewson, & Co. v., 13 Or. 563. Putnam v. Douglas County, 6 Or. 328; 125, 193, 230, 233, 305. Pyle, Territory of Oregon ex rel. Kennedy v., 1 Or. 149. Quinney, Keith v., 1 Or. 364. Quigley v. McKee, 12 Or. 22; 519, 562. Raleigh, Chapman v., 3 Or. 34. Ramp V. McDaniel, 12 Or. 108; 10, 163, 354. Ramsby v. Beezley, 11 Or. 49; 145. Ramsby, Ladd and Bush v., 10 Or. 207. Ramsey v. Loomis, 6 Or. 367; 114, 205, 211, 254, 400, 481, 482, 497. Ramsey v. Pettengill, 14 Or. 207; 31, 32, 503. Rankin v. Buckman, 9 Or. 253; 29, 412, 415, 417, 422, 436, 533. Rathborn, Brown & Co. v., 10 Or. 158. Rayburn, White v., 11 Or. 450. Raymond v. Coffey, 5 Or. 132; 101, 205, 207. Rea, Runey v., 7 Or. 130. Read v. Benton County, 10 Or. 154; 41, 158, 160. Reed v. Gentry, 7 Or. 497; 248, 370. Reed, Snow v., 14 Or. 342. Rees V. Reea, 7 Or. 47; 218. Rees V. Rees, 7 Or. 78; 40, 41. Pees, Steel v., 13 Or. 428. Reese, Whitlow v., 4 Or. 335. Regan v. Territory, 1 W. T. 31; 331. Remdall v. Swackhamer, 8 Or. 502; 278, 370, 499, 517. Remick, Willamette Falls Co. v., 1 Or. 169. Remillard v. Prescott, 8 Or. 37; 242, 400, 401. Rcmmington v. State, 1 Or. 281; 167, 297 531. Renshaw v. Taylor, 7 Or. 315; 242, 30.3, 337, 398, 406, 409, 441, 4G5, 496. Resolute, Steamtug, Steamship Northerner v., 1 W. T. 78. Renton v. St. Louis, 1 W. T. 215; 81, 117, 454, 456, 459, 461, 463. Renton, Macintosh v., 2 W. T. 121. Revenue Cutter, Goldsmith v., 6 Or. 250. Reves, Coggan v., 3 Or. 275. Rhea v. Umatilla County, 2 Or. 298; 161, 353, 503, 545, 548. Rice V. Rice, 13 Or. 337; 29, 221, 462. Rich V. Palmer, 6 Or. 339; 549. Rich V. Palmer, 7 Or. 133; 431, 482, 549. Richards v. Fanning, 5 Or. 356; 45, 64, 365, 366, 461, 462, 471. Richards v. Nye, 5 Or. 382; 278, 516. Richards v. Snider, 11 Or. 197; 203, 205, 375, 521. Richards v. Snider and Crews, 11 Or. 501; 212, 375, 430, 432, 478, 521. Richards, CreWs and Snider v., 14 Or, 442. Richardson v. Fuller & Co., 2 Or. 179; 333, 445. Packard v. Rickard, 9 Or. 168; 217. Rickey v. Ford, 2 Or. 251; 44, 53. Rickey, Woodsides v., 1 Or. 108. Riddle, Wood v., 14 Or. 254. Riley, Levy v., 4 Or. 392. Riley, Willamette Falls Co. v., 1 Or. 183. Rinehart, Fordice v., 11 Or. 208. Risley, Ritchey v., 3 Or. 184. Risley, Taggart v., 3 Or. 306. Risley, Taggart v., 4 Or. 235, Ritchey v. Risley, 3 Or. 184; 336, 382. Robbins v. Baker, 2 Or. 52; 25. Rol)bins v. Benson, 11 Or. 514; 4, 243, 455, 476. Robbins, Coffman v., 8 Or. 278. Roberts v. Garland, 1 Or. 332; 140, 154, 575. Roberts v. Lucus, 1 W. T. 205; 364, 478, 555, 556. Roberts v. Sutherlin, 4 Or, 219; 74, 403, 408, 465. Roberts, Crawford v., 8 Or. 324. Roberts, Sutherlin v., 4 Or. 378. Roberts and Miner v. Bush, 1 W. T. 181; 53, 55, 59. Roberts and Hoyt v. Tucker, 1 W. T. 179; 37, 42, 50, 53, 55, 59. Rodolph V. Mayer, 1 W. T. 133; 81, 146, 248, 332,' 467, 519, 538. Robertson v. Groves, 4 Or. 210; 228, 411, 436. Robertson, Mays v., 13 Or. 214. Robinson v. Coffin, 2 W. T. 251; 201. Robinson, Felger v. , 3 Or. 455. Rochester v. Rochester, 1 Or. 307; , 220, 536. Table of Cases. 645 Rodney, Page v., 2 "W. T. 461. Roeder, Peabody, & Co. v. Brown, 1 W. T. 112; 2S, 93, 325, 332, 454, 469. Rogers v. Wallace, 10 Or. 387; 67, 250 366. Rogers, Parker v., 8 Or. 183. Rogue River Mining Co. v. Walker, 1 Or. 341; 62, 466. Rohr V. R-icon, 13 Or. 350; 134, 143, 401. Rohr V. Isaacs, 8 Or. 451; 57, 64, 365, 370, 374, 460, 470. Rolfes V. Russel, 5 Or. 400; 115, 193, 290. 370. Rosen v. Warren, 2 Or. 17; 88. Roseburg v. Abraham, 8 Or. 509; 115, 420, 434. Rosencrantz v. Territory, 2 W. T. 267; 313, 314, 359. Rosendorf v. Baker, 8 Or. 240; 65, 137, 254, 303, 365, 390, 508. Rosenthal v. Schneider, 2 W. T. 144; So, 294, 323. Rosa, Coleman v., 14 Or. 349. Rottner, Droudhat v., 13 Or. 493. Rourke, Ewing v., 14 Or. 514. Rowland v. Warren, 10 Or. 129; 212, 277, 282, 573. Rowland, Newby v., 11 Or. 133. Roy V. llorsley, 6 Or, 270; 41, 247, 435, 517. Roy V. Horsley, 6 Or. 382; 330, 352, 350, 4G9, 501. Ruble V. Coyote G. & S. M. Co., 10 Or. 39; 100, 236, 320, 441. Ruble, Coyote G. & S. M. Co. v., 8 Or. 284. Ruble, Coyote G. & S. M, Co. v., 9 Or. 121. Rubl , Kelly v., 11 Or. 75. Ruckles V. State, I Or. 347; 96, 160, 510. Rugh V. Ottenheimer, 6 Or. 231; 27, 120, 123, 124, 242, 273, 310, 395, 531. Rummell, Trabant v., 14 Or. 17. Runcy V. Rca, 7 Or. 1.30; 383. Russel, Pitzer v., 4 Or. 124. Russul, Rolfes v., 5 Or. 400. Russell V. Lewis, 3 Or. 380; 8, 161, 249. 252, 353, 356. Russell V. Swift, 5 Or. 233; 114, 402. RusscU, Woissinan v., 10 Or. 73. Rutherford v. Thompson, 14 Or. 236; . 11, 146. Rutherforil, Adams v., 13 Or. 78. Ryan v. Harris, 2 Or. 175; 31, 123, 354, 372, 415. Salem Co., (,'ity of, Kothenberthal v., 13 Or. 604. Salein, Salem Water Co. v., 5 Or. 29. Salem, Sheridan v., 14 Or. 328. Salem, Wilson v., 3 Or. 482. Salem Flouring Mills Co., City of Salem Co. v., 12 Or. 374; 199, 569. Salem Flouring Mills Co., Tucker v., 13 Or. 28. Salem Water Co. v. Salem, 5 Or. 29; 123, 412. Salmon v. Olds and King, 9 Or. 488; 61, 66, 144, 194, 365, 366, 429. Sanford v. Wheelan, 12 Or. 301; 521. Sargent v. Umatilla County, 13 Or. 442; 283. Saubert & Co. v. Conley and Leasure, 10 Or. 488; 118. Saunders v. Pike, 6 Or. 312; 41, 330, 373. Saunders, State v., 14 Or. 300. Savage v. Glenn, 10 Or. 440; 29, 71, 141, 195. Savage, Glenn v., 14 Or. 567. Savage v. Savage, 10 Or. 331; 220, 292, 468. Savage v. Savage, 12 Or. 459; 23, 293, 510, 559. Savage, Cartright v., 5 Or. 397. Savage, English v., 5 Or. 518. Savier, Burnside v., 6 Or. 154. Sax, Kennard v., 3 Or. 203. Saxon V. Conger, 6 Or. 388; 119, 168, 379. Sayward v. Guye, 2 W. T. 420; 55, 60. Schaer, Wineburgh v., 2 W. T. 32a Scheland v. Erpelding, 6 Or. 258; 27, 135, 141, 102, 238, 462, 515. Schilling v. Territory, 2 W. T. 283; 176, 246, 297, 314, 359, 563. Schirott V. Phillippi, 3 Or. 484; 31, 503. Schlussel and Rosen v. Warren, 2 Or. 17; 88. Schmidt v. Vogt, 8 Or. 344; 485, 509, 554. Schmidt, Portland v., 13 Or. 17. Schmidt, Williams v., 14 Or. 470. Schmieg v. Wold, 1 W. T. 472; 64, 365, 367, 511. Schneider, In re, 11 Or. 288; 97, 388, 412. Schneider v. Hass, 14 Or. 174; 578. Schneider v. Sears, 13 Or. 69; 78, 79, 116, 275, 278, 283, 518. Schneider v. Wliite, 12 Or. 503; 116, 134, 143, 378. Schneider, Hexterv., 14 Or. 184. Schneider, Rosenthal v., 2 W. T. 144- Schotield, Brazce v., 2 W. T. 209. School District, Stephens v., 6 Or. 353. School District No. 1, Brown v., 12 Or. 345. 646 Table of Cases. School District No. 1, Portland Lum- bering and Mfg. Co. v., 13 Or. 2S3. School District No. 5, Stackpole v., 9 Or. 508. School District No. 15, Holmes v., 11 Or. 3:i2. School Land Com'rs v. Wiley, 10 Or. So; 205, 207, 345, 409, 445, 549. Schulderman, Buchanan v., 11 Or. 150. Schutz V. Dalles Military Road, 7 Or. 259; 194, 305. Schwabacher v. Wells, 1 W. T. 506; 42, 43, CO, 352, 467. Schwabacher Bros. & Co., Murne v., 2 W. T. 130. Schwabacher Bros. & Co., Mume v., 2 W. T. 191. Schwartz, Marx and Jorgensen v., 14 Or. 177. Scoggin V. Hall, 12 Or. 372; 41, 344, 374. Scoggin, Oregon Central R. R. Co. v,, 3 Or. 101. Scoland, Baxter v., 2 W. T. 86. Scott V. Cook, 1 Or. 24; 61. Scott V. Oregon R'y & Nav. Co., 14 Or. 211; 420, 493. Scott, Bigclow v., 2 W. T. 378. Scott, Taylor v., 10 Or. 483. Scovill V. Barney, 4 Or. 288; 25, 290. Sears v. Aljrams, 10 Or. 499; 105, 106, 145, 564. Sears v. McGrew, 10 Or 48; 91, 143, 327, 331. Sears, Drake v., 8 Or. 209. Sears, Habersham v., 11 Or. 431. Sears, Ladd and Bush v., 9 Or. 244. Sears, Murphy v., 11 Or. 127. Sears, Dahms v., 13 Or. 47. Sears, Gcrdes v., 13 Or. 358. Sears, Schneider v., 13 Or. 69. Seat of Government Case, 1 W. T. 115; 130, 513, 529, 5.3a Seattle v. Buzby, 2 W. T. 25; 367, 415, 423. Seattle v. Yesler, 1 W. T. 571; 414, 418, 419, 532, 547. Seattle, Collins v., 2 W. T. 354. Seattle Coal Co. v. Lewis, 1 W. T. 488; 33. Seatae and Walla Walla R. R. Co. v. Ah Kow, 2 W. T. 30;. 50, 51, 70, 77, 85, 156, 272, 385. Sebastian, Seely v. , 3 Or. 563. Sjbasiiau, Seely v., 4 Or. 25. Se^llak V. Sedlak, 14 Or. 540; 344, 376. vSeeley v. Sabastian, 3 Or. 563; 40, 44. Saoly V. Sebastian, 4 Or. 25; 118, 161, 193, 215. 529. Selby V. Portland, 14 Or. 243; 437, 4ul, 505. Seller v. Steamship Pacific, 1 Or. 409; 111, 249, 253, 421. Sellers v. Corvallis, 5 Or. 273; 31, 32, 373, 415, 503. Sellwood V. Gray and De Lashmutt, 11 Or. 534; 277, 403, 404, 405, 406. Sellwood, De Lashmutt v., 10 Or. 51. Sellwood, De Lashmutt v., 10 Or. 319. Sels, Grant County v., 5 Or. 243. Settlemier v. Newsome, 10 Or. 446; 227. Sewell, Mumford v., 11 Or. 67. Shannahan, Hillman v., 4 Or. 163. Shapoonmash v. United States, 1 W. T. 188; 171, 172, 187, 248,311, 357. Sharflf, Jackson v., 1 Or. 246. Sharp, Long v., 5 Or. 438. Shartle v. Hutchinson, 3 Or. 337; 193, 519. Shattuck V. Smith, 5 Or. 125; 64, 133, 140, 365, 433, 550. Shattuck, Smith v., 12 Or. 362. Shaw V. Oswego Iron Co., 10 Or. 371; 246, 321, 5G6, 567, 569. Shaw, Knott v., 5 Or. 482. Shelby, Williams v., 2 Or. 144. Shei^herd v. Hawley, 4 Or. 206; 245. Sheppard v. Yocum, 10 Or. 402; 120,. 145, 261, 263, 266, 472,, 526, 576, 578. Sheppard v. Yocum, 11 Or. 234; 33, 79, 338, 474. Sheridan v. Salem, 14 Or. 328; 129, 196, 272, 414, 415, 421, 423, 424, 522, 530, 535. Sheridan v. McMuUen, - 12 Or. 150; 321, 565. Sheriff of Lewis County, Hogue v. , 1 W. T. 172. Sherman v. Osborn, 8 Or. 66; 25. Sherwin, Smith v., 11 Or. 269. Sherman, Swift v., 2 Or. 97. Ship Challenger, Smith v., 2 W. T. 447. Shirley v. State, 1 Or. 269; 177, 289, 561. Shirley, Hannah v., 7 Or. 115. Shively v. Hume, 10 Or. 76; 434, 567, 568. Shively v. Parker, 9 Or. 500; 236, 292, 486, 558. Shively v. Welch, 2 Or. 288; 202, 210, 241, 400. Shively, Johnson v., 9 Or. 333. Shively, Wilson v., 11 Or. 215. Shocklcy v. Brown, 1 W. T. 464; 103, 117, 237, 4.33, 477, 483, 489. Shook v. Colohan, 12 Or. 239; 58, 567. Shorey v. Wyckoff, 1 W. T. 348; 42. Shortesa v. Wirt, 1 Or. 90; 2SS. Table of Cases. 647 Shumway v. Baker County, 3 Or. 246; 548. Siddal, Jacobsen v., 12 Or. 280. Siglin, Jackson v., 10 Or. 93. Silver, Huimer v., 2 Or. 336. Silver Hill Mining Co., Uodges and Wilson v., 9 Or. 200. Simison v. Simison, 9 Or. 335; 48. Simon v. Brown, 5 Or. 285; 71, 104, 555, 565. Simon v. Durham, 10 Or. 52; 54, 228, 394. Simon v. Portland Common Council, 9 Or. 437; 228, 353, 436^ 505. Simon, Kafka v., 3 Or. 585. Simonds. Lee v., 1 Or. 158. Simonds, Steamer Senorita v., 1 Or. 274. Simpson V. Bailey, 3 Or. 515; 123, 164, 530. Simpson v. Brown Bros. & Co., 1 W. T. 247; 84, 476. Simpson v. Carson, 11 Or. 361; 136, 137, 258, 471, 551. Simpson v. Prather, 5 Or. 86; 53, 327, 330, 458, 401. Sims, Dawson v., 14 Or. 561. Singer, Partlow v., 2 Or. 307. Sin-^cr Mfg. Co. v. Graham, 8 Or. 17; 45, 123, 137, 148, 508, §30. Sires v. Newton, 1 W. T. 356; 273, 280, 501. Skellinger v. Smith, 1 W. T. 369; 6, 209, 213, 251, 253, 430, 432, 464. Sliker, Multnomah County v., 10 Or. 65. Slocum, Krewson &Co. v., 13 Or. 563. Sloop Christina, Waling v., 1 Or. 430. Sloop Leonede v. United States, 1 W. T. 153; 16, 156, 339. Sloper and Kelso v. Carey, 9 Or. 511; 41, 120. Sly, State v., 4 Or. 277. Smith V. Butler, 11 Or. 46; 114, 258, 401, 454, 458. Smith V. Caro and Baum, 9 Or. 278; 89, 90, 91, 258. Smith V. Case, 2 Or. 190; 77, 86, 138, 540. Smith V. Cox, 9 Or. 327; 99, 250, 290. Smith V. Cox, 9 Or. 475; 61, 194, 270, 292. Smith V. Ellendale Mill Co., 4 Or. 70; 31 32 334 5.37. Smith v'. Foster, 5 Or. 44; 138, 140, 433, 448, 453, 550. Smith v. Gardner, 12 Or. 221; 200, 201, 2.35, 307, 320, 367, 381, 434, 556. Smith V. Griswold, 6 Or. 440; 235, 249, 290, 291, 511. Smith V. Harris, 7 Or. 76; 73, 269, 319. Smith V. Ingles, 2 Or. 43; 273, 339. Smith V. Kennedy, 1 W. T. 55; 4, 255. Smith V. King, 14 Or. 10; 394, 518, 533, 547. Smith, Ladd and Bush v., 6 Or. 316. Smith v. Lownsdale, 6 Or. 78; 88, 90, 365, 368. Smith V. Shattuck, 12 Or. 362; 20, 205, 225, 255, 371, 472, 548. Smith V. Sherwin, 11 Or. 269; 315. Smith V. Ship Challenger, 2 W. T. 447; 19. Smith, Skellinger v., 1 W. T. 369. Smith V. Smith, 3 Or. 363; 21, 108, 218, 34.3, 458, 531, 538, 552. Smith V. Smith, 5 Or. 186; 220, 268, 308. Smith V. Smith, 8 Or. 100; 217, 291, 395. Smith V. United States, 1 W. T. 262; 31, 165, 171, 172, 177, 181, 183, 184, 188, 190, 191, 308, 309, 311, 357, 3G2, 365, 366, 427, 489. Smith Bros. v. Wlieeler, 7 Or. 49; 141, 509, 551. Smith, Bach, Messe, & Co. v., 2 W. T, 144. Smith, Baxter v., 2 W. T. 97. Smith, Colwell v., 1 W. T. 92. Smith, Dorrisv., 7 Or. 267. Smith, Faling v., 14 Or. 82. Smith, Heneky v., 10 Or. 349. Smith, Knighton v., 1 Or. 276. Smith, Lambert v., 9 Or. 185. Smith, Liimvillev., 6 Or. 202. Smith, Page v., 13 Or. 410. Smith, Porter v., 1 W. T. 608. Smith, Shattuck v., 5 Or. 125. Smith, State ex rel. Blanchard v,, 1 Or. 250. Smith, State v., 11 Or. 205. Smith, Watson v., 7 Or. 448. Smith, Weise v., 3 Or. 445. Smith, Willamette Falls Co. v., 1 Or. 171. Smith, Willamette Falls Co. v., 1 Or. 181. Smith, Wolf v., 6 Or. 73. Smith and Forward, Cox v., 10 Or. 419. Snider v. Lehnlierr, 5 Or. 385; 140, 520. Snider, Jones v., 8 Or. 127. Suider, Richards v., 11 Or. 197. Snipes V. Beezley, 5 Or. 420; 157, 274, 342. Snodgrass and Minor, Kearney v., 10 Or. 181. Snodgrass, Kearney v., 12 Or. 311. Snow V. Reed, 14 Or. 342; 84, 432, 452. 648 Table of Cases. Snyder v. Vannoy, 1 Or. 344; 289, 343, 400. Snyder and Crews, Richards v., 11 Or. 501. Sohns, Cascades R. R. Co. v., 1 W. T. 557. Solomon v. Bushnell, 11 Or. 277; 74, 564. Southwell V. Beezley, 5 Or. 143; 363, 509, 522. Southwell V. Beezley, 5 Or. 458; 135, 138, 429, 509, 522. Starks v. Erown, 2 W. T. 426; 238, 345 479. Spaul'ding'v. Kennedy, 6 Or. 208; 275, 498. Spear v. Cook, 8 Or. 380; 208, 223, 556, 508. Specht V. Allen, 12 Or. 117; 29, 292, 331, 458, 472. Spencer, Newton v., 3 Or. 548. Spencer, State v., 6 Or. 152. Spores V. Boggs, 6 Or. 122; 456, 498. Spores, State v. , 4 Or. 198. Sprague v. Fletcher, 8 Or. 367; 90. Springer v. Young, 14 Or. 280; 20, 317, 482, 483, 559. Springfield Milling Co. v. Lane Co., 5 Or. 265; 103, 110, 142, 104, 304, 436, 528, 533. Stackpole v. School District No. 5, 9 Or. 508; 116, 512. Stafford, Stark v., 14 Or. 317. Stannio v. Nicholson, 2 Or. 332; 279, 339, 404. Stannus, Willamette Freighting Co. v., 4 Or. 201. Stark V. Jenkins, 1 W. T. 421; 37, 352 Stark V. Olney, 3 Or. 88; 154, 192, 204, 206, 246, 324, 535. Stark, Coleman v., 1 Or. 115. Stark, Starr v., 7 Or. 500. Starks v. Stafford, 14 Or. 317; 39, 49. Starr v. Stark, 2 Or. 118; 479, 480, 488. Starr v. Stark, 7 Or. 500; 337, 398, 558. Starr, Briney v., 6 Or. 207. Starr, Nino v., 8 Or. 49. State V. Almxins, 11 Or. 169; 66, 67, 82, 175, 177, 179, 183, 186, 190, 215, 201, 263, 270, 271, 308, 309, 310, 576, 578. State V. Ah Lee, 7 Or. 237; 177, 183, 263, .308, 309. State V. Ah Lee, 8 Or. 214; 186, 309, 310, 36S, 576. State V. Ah Sam, 7 Or. 477; 179, 451, 502. State V. Ah Sam, 14 Or. 347; 174, 175, 181, 304. State V. Anderson, 10 Or. 448; 66, 82, 127, 177, 183, 186, 190, 215, 260, 263, 264, 308, 309, 310, 358, 366, 575. State V. Bacon, 13 Or. 143; 21, 181, 577, 578. State V. Becker, 12 Or. 318; 30, 45, 46, 62, 190, 368, 427, 428. State V. Benjamin, 2 Or. 125; 388, 534. State V. Bergman, 6 Or. 341; 168, 172, 174 413 433. State V. Bertram!, 3 Or. 61; 246, 308. State V. Bovee, 11 Or. 57; 50, 189. State V. Brown, 2 Or. 221; 129, 158, 167, 171, 856. State V. Brown, 5 Or. 119; 32, 41, 189. State V. Brown, 7 Or. 186; 61, 64, 65, 169, 173, 174, 309, 361, 364, 365, 368, 506. State V. Brown, 10 Or. 215; 4, 338, 513. State V. Bruce, 5 Or. 68; 173, 228. State, Burchard v., 2 Or. 78. State V. Cannon, 11 Or. 313; 171. State V. Carr, 6 Or. 133; 6, 168, 174, 178, 287, 297. State V. Cartwright, 10 Or. 193; 186, 187, 371. State V. Cliadwick and Brown, 10 Or. 423; 3, 7, 145, 442, 455, 485, 522. State V. Cliadwick, 10 Or. 465; 97, 436. State V. Church, 5 Or. 375; 103, 124, 319, 490, 506. State V. Clark, 9 Or. 466; 262, 337, 522, 576. State V. Connally, 3 Or. 69; 177, 182, 183, 30S. State V. Cornelius, 5 Or. 46; 78, 379, 516. State V. Cutting, 3 Or. 260; 168, 178, 249, 381, 387, 388. State V. Dale, 8 Or. 229; 144, 169, 174, 361, 517. State V. Dodson, 4 Or. 64; 173, 178, 182, 189, 308, 529, 553. State V. Doty, 5 Or. 491; 72, 173, 178, 182. State V. Dougherty, 4 Or, 200; 173, .391. State V. Douglas County R. Co., 10 Or. 185; 103, 307. State V. Douglas County R. Co., 10 Or. 198; 126, 442, 490. State V. Drake, 11 Or. 396; 30, 45, 46, 61, 62, 63, 66, 83, 348, 427, 428, 575. State "v. Ducker, 8 Or. 394; 61, 64, 169, 379. State V. Dunbar, 13 Or. 591; 184, 438. Table of Cases. 649 State V. Ellis, 3 Or. 497; 38, 47, 189, 507. State V. Fitzhugh, 2 Or. 227; 2, 30, 62, 63, 120, 177, 190, 263, 265, 308, 358, 361, 369, 427, 575. State V. Garrand, 5 Or. 156; 261, 309. State V. Garrand, 5 Or. 210; 61, 178. 182, 183, 186, 261, 262, 265, 268, 309, 362, 365. State V. Gaunt, 13 Or. 115; 110, 113, 170, 528, 534. State V. Gitt Lee, 6 Or. 425; 108, 174, 297. State V. Glass, 5 Or. 73; 2, 61, 177, 178, 183, 260, 262, 203, 308, 309, 3G4. State V. Grant, 7 Or. 414; 183, 309, 310, 363, 364, 367. State V. Grover, Chadwick, and Fleischner, 10 Or. 66; 67, 497. State V. Hale, 12 Or. 352; 180, 248, 379. State V. Haj's, 2 Or. 314; 96, 98, 540. State V. Hibernia S. & L. A., 8 Or. 396; 85, 125, 147, 402. State V. Hoyt, 2 Or. 246; 415, 435. State V. Hulin, 2 Or. 307; 147, 154, 512. State V. Hume, 12 Or. 133; 174, 175, 307, 434, 433. State V. Jackson, 9 Or. 457; 45, 63, 66, 574. State V. Jacobs, 11 Or. 314; 321, 394. State ex rel. Whitney v. Johns, 3 Or. 533; 163, 435. State V. Johnson, 2 Or. 115; 167, 171, 336, 37S, 562. State V. Johnson, 7 Or. 210; 169, 309. State V. Justus, 11 Or. 178; 65, 180, 182, 186, 261, 271, 310, 358, 422. State, Ketchum v., 2 Or. 103. State V. Kirk, 10 Or. 505; 2, 127, 174. State V. Lawrence, 12 Or. 297; 127, 175, 358. State V. Lee Ping Bow, 10 Or. 27; 66, 82, 174, 179, 186, 215, 363, 371, 379, 405. State V. Lee Yan Yan, 10 Or. 365; 45, 64, 67, 173, 174, 190, 366, 379. State V. Leonard, 3 Or. 157; 185, 266, 468. State V. Lurch, 12 Or. 95; 68, 87, 180, 182, 282, 289. State V. Lurch, 12 Or. 99; 170, 175, 179, 180, 191, 289, 578. State V. Lurch, 12 Or. 104; 175, 180, 263, 289, 576. State V. Mackey, 12 Or. 154; 30, 62, 180, 181, 190, 264, 265, 309, 311, 364, 367, 427, 576. State ex rel. JIahouey v. McKinaon, 8 Or. 485; 54. State ex rel. Mahoney v. McKinnon, 8 Or. 487; 21, 38, 65, 66, 133, 350, 351, 357. State ex rel. Mahoney v. McKinnon, 8 Or. 493; 108, 228, 352, 412, 436, 490. State V. Mah Jim, 13 Or. 235; 181, 271, 311, 577, 578. State V. Mana, 2 Or. 238; 167, 297. State V. McCormack, 8 Or. 236; 125, 169, 174, 182; 326, 379. State V. McDonald, 8 Or. 113; 30, 62, 263, 361, 427, 428, 576. State V. McKiumore, 8 Or. 207; 21, 48, 56. State V. Moy Looke, 7 Or. 54; 135, 178, 246, 254, 269, 363. State V. Multnomah County, 13 Or. 287; 325, 544. State V. Munds, 7 Or. 80; 274, 330, 340, 431. State V. Murray, 11 Or. 413; 182, 250, 261, 309, 310, 323, 575, 578. State V. Odell, 8 Or. 30; 2, 179, 269. State V. Oificer, 4 Or. 180; 161, 304, 354, 356. State V. ONeil, 7 Or. 141; 340, 487. State V. O'Neil, 13 Or. 183; 21, 68, 181, 184, 180, 271, 311, 468, 578. State V. Oregon Central R. R. Co., 2 Or. 255; 31, 154. State V. Packard, 4 Or. 157; 173, 282. State, Palmer v. , 2 Or. 63. State V. Perham, 4 Or. 188; 173, 328. State V. Powers, 10 Or. 145; 310, 361, 553. State V. Saunders, 14 Or. 300; 68, 128, 179, 184, 191, 265, 361, 578, 579. State ex rel. Wilson v. Shivch', 10 Or. 267. State V. Sly, 4 Or. 277; 73, 108, 108, 172, 182, 326, 352, 413. State ex rel. I31anchard v. Smith, 1 Or. 250; 214. State V. Smith, 11 Or. 205; 73, 175, 186. State V. Spencer, 6 Or. 152; 173, 174, 451. State V. Spores, 4 Or. 198; 186, 369, 471. State V. Stewart, 11 Or. 52; 73, 169, 182, 576. State V. Stewart, 11 Or. 238; 73, 169, 182, 576. State V. Sturgess, 9 Or. 537; 298, 534, 568. State V. Swayze, 11 Or. 357; 25, 67, 184, 248, 366, 379, 576. State V. Sweet, 2 Or. 127; 167, 173, 229. State V. Taylor, 3 Or. 10; 167, 173, 177, 206, 378, 577. 650 Table of Cases. state V. TiUey, 9 Or. 125; 169, 313. State V. Tom, 8 Or. 177; 45, 66, 262, 264, 36] , 493. State V. Tom Louey, 11 Or. 326; 175, 371, 508. State V. Vowels, 4 Or. 324; 168, 173, 397. State ex rel. Shaw v. Ware, 13 Or. 380; 160, 229, 329, 394, 437, 443, 553. State V. Whitney, 7 Or. 386; 65, 169, 182, 183, 186, 308, 309, 328, 358, 3G5, 436. State V. Wiley, 4 Or. 184; 120, 123, 171, 355, 373, 415, 464, 529. State V. Wilson, 6 Or. 428; 30, 62, 178, 190, 427, 562. State ex rcl. McCormick v. Winton, 11 Or. 456; 83. State V. Wintzingerode, 9 Or. 153; 169, 174, 179, 266, 308, 310. State V. Witham, "6 Or. 366; 174, 451. State V. Wright and Harris, 14 Or. 385; 129, 170, 389, 414, 629, 530, 535. State V. Zingsem, 7 Or. 137; 41, 53, 54, 189. State, Bowen v., 1 Or. 270. State, Chapman v., 5 Or. 432. State, Crowley v., 11 Or. 512. State, Frisbiev., 1 Or. 248. State, Fridbie v., 1 Or. 264. State, Gird v., 1 Or. 308. State, Goodall v., 1 Or. 333. State, Horner v., 1 Or. 267. State, Howell v., 1 Or. 241. State, Jennings v., 1 Or. 290. State, Multnomah County v., 1 Or. 358. State, Reramington v., 1 Or. 281. State, Ruckles v., 1 Or. 347. State, Shirley v., 1 Or. 269; 159. State University, Dunn v., 9 Or. 557. Stauff, Noyes v., 5 Or. 455. Steadman, Hay den v., 3 Or. 550. Steamboat Zephyr v. Brown, 2 W. T. 44; 18, 51. Steamer Daisy, Waddell v., 2 W. T. 76. Steamship City of Panama, Phelps v., 1 W. T. 518. Steamdiip City of Panama, Phelps v., 1 W. T. 615. Steamship Columbia, Cutler v., 1 Or. 101. Steamship Columbia, Williams v., 1 W. T. 95. Steamship Gazelle v. Lake, 1 Or. 119; 381, 533, 535. Steamship Northerner v. Steamtug Resolute, 1 W. T. 78. Steamship Northerner, Meigs v., 1 W. T. 78. Steamship Pacific, Seller v., 1 Or, 409; 15. Steamship Panama, Edwards v., 1 Or. 418. Steamship Senorita v. Simonds, 1 Or. 274; 28, 62, 455, 524. Steamtug Resolute, Steamship North- erner v., 1 W. T. 78. Stearns, Brauns v. , 1 Or. 367. Steel V. Rees, 13 Or. 428; 34, 50, 58, 353. Steel,'Caplesv., 7 Or. 491. Steeples v. Newton, 7 Or. 110; 77, 142, 262, 489, 576. Steger, Evarts v., 5 Or. 147. Steger, Evarts v., 6 Or. 55. Stephens v. Allen, 11 Or. 188; 211, 212, 257, 258, 403. Stephens v. Dennison, 1 Or. 19; 273, 279. Stephens V. Knott, 2 Or. 304; 135, 285. Stephens V. Knott, 3 Or. 50; 135, 235. Stephens v. Murtou, 6 Or. 193; 114, 290, 400, 497. Stephens v. Powell, 1 Or. 283; 121, 285, 289. Stephens V. School District, 6 Or. 353; 512, 546. Stephens, Bonnett v., 8 Or. 444. Stephens, Knott v., 3 Or. 239. Stephens, Knott v., 5 Or. 235. Stephens, Parrish v., 1 Or. 59. Stephens, Pai-rish v., 1 Or. 73. Stephenson, Canyonrille and Gales- ville Road Co. v., 8 Or. 263. Stevens v. Baker, 1 W." T. 315; 7, 237 357 448 Stewart v.' McClung, 12 Or. 431; 250, 273. Stewart v. Perkins, 3 Or. 508; 22, 376. Stewart V. Phy, 11 Or. 335; 402, 450. Stewart, Hancock v., 1 W. T. 323. Stewart, State v., 11 Or. 52; 264, 326, 375. Stewart, State v., 11 Or. 238; 264, 326, 375. Stiles v. James, 2 W. T. 194; 116, 358, 500. Stimson v. Estes, 3 Or. 521; 496. Stinson v. Porter, 12 Or. 444; 252, 263. Stitzel, Dufernoy v., 3 Or. 58. St. Louis, Ronton v., 1 W. T. 215. Stock, Portland v., 2 Or. 69. Stock, Corvallis v., 12 Or. 391. Stoll V. Hoback, 2 Or. 225; 31, 372. Stone v. Cason, 1 Or. 100; 98, 319. Stone V. Oregon City Mfg. Co., 4 Or. 52; 396, 422, 425. Table of Cases. 651 Stone, Cason v., 1 Or. 30. Stoao, Miskel v., 1 W. T. 229, Stone, Perryv.,.2W. T. 464. Story, Dcmiisoa v., 1 Or. 272. Stott, Gastoa v., 5 Or. 48. Stoiightou, Griswokl v., 2 Or. 61. S..aighton, Baker v., 1 Or. 227. Stovvbrielge, Tribou v., 7 Or. 156. Scowv,!!, liiv-erarity v., 10 Or. 2G1. Strang v. Keith, 1 Or. 312; 40, 47. Scroag V. Barniuirt, 5 Or. 49(5; 130, 274, 337, 339, 341, 347, o-2o. Stro-ig V. Barnhart, G Or. 93; 247, 274, 341, 356. Sti-ong V. Kamm, 13 Or. 172; 61, 66, 13t, li3, 256, 259, 366, 524. Strong, Hedg-js v., 3 Or. 18. Strong, Torrenee v., 4 Or. 39. ScrowbriJge v. Portland, S Or. 67; 417. Stump, Joy v., 14 Or. 361. S:"arg>ii>, Scaic v., 9 Or. 537. Starteva:i';, Lulir.3 v., 10 Or. 170. S.ifiern v. Chiihol.ii, 1 W. T. 486; 33, 35, 79, 81, .329, .338, 474. Sujetfcev. Wn:oa, 13 Or. 514; 215, 560. S.rj;3uorf V. i3ingham, 13 Or. 369; 460. Suil:va:i v. Orc~oa ll'y & Xav. Co., \2 Or. 392; 195, 263, 271, 397, 424, 4,)2. S-MiiKiero V. Harrington, 14 Or. 480; 31, 32, 503. Sa-n rierj, Lz^ v., 2 Or. 263. Su.;i .10"-;, By be J v., 4 Or. 354. Sur.ip.er, Fle:clm3r v., 12 Or. 161.' S. Ill J J V. :jw2eney, 11 Or. 21; 499. Suj:::ri:a, R^'jcrto v., 4 Or. 219. SuLjcrlLi V. Roberts, 4 Or. 37S; 525. S;vac!iaamjr, McCally v., 6 Or. 438. S-.7a,2kha.ncr, Roimlall v., 8 Or. 502. S'.vr.n-sr. Zacliary v., 1 Or. 92. Sr.Mr.z, McCracken v., 5 Or. 62. S".var!.j, Mjaohani Arms Company v., 2 W. T. 112. Swayzo, State v., 11 Or. 357. Sw3jk V. Cilbroatli, 11 Or. 516; 355, 374. Swoeney v. Jameson, 2 W. T. 254; 19S. Svv.eiey, Surles v., 11 Or. 21. Swccl-, Sta^e v., 2 Or. 127. Swot^lo V. Wv-lh, 7 Or. 222; 65, 91, £3:), 248, 3C3, 370, 450. Swift V. xMulieyand Hill, 14 Or. 59; 20, 102, 212, 226, 276, 371, 460. Swft V. Stark, 2 Or. 97; 327, 335, 347. Sv/iii, Russell v., 5 Or. 233. Tiggarfc V. Riolr«y, 3 Or. 306; 28, 206. Taggart v. Risby, 4 Or. 235; 206, 210, 241. Taggart, Martin v., 14 Or. 165. Tatora, Cressey v., 9 Or. 543. Tatum V. Clierry, 12 Or. 135; 384. Taylor v. Jenkins, 11 Or. 274; 12U, 355, 374, 538. Taylor v. Patterson & Co., 5 Or. 121; 61, 114, 402. Taylor V. Taylor, 11 Or. 303; 217. Taylor v. Umatilla County, 6 Or. 394- 401; 73, 82, 283, 531. Taylor v. Umatilla County, 6 Or. 401, Taylor, Gilmore v., 5 Or. 89. Taylor, Howe v., 6 Or. 284. Taylor, Howe v., 9 Or. 238. Ta3lor, Humphreys v., 5 Or. 260. Taylor, Parker v., 7 Or. 435. Tavlor, Renshaw v., 7 Or. 315. Taylor, Scott v., 10 Or. 483; 288. Taylor, State v., 3 Or. 10. Taylor, Welch v., 6 Or. 198; 320, 567. Taylor, Nesqually Mill Co. v., 1 W. T. 1. Taylor, Puget Sound Commercial Co. v., 2 W. T. 93. Teal V. Collins, 9 Or. 89; 109, 116, 490. Teal, Holcomb v., 4 Or. 352. Teller v. Brower, 14 Or. 405; 204. Teuny v. Mulvaney, 8 Or. 129; 66, 136, 553. Tenny v. ISIulvaney, 8 Or. 513; 82, 363, 472, 553. Tenny and jSIcKenzie v. ilulvaney and Bemis, 9 Or. 405; 64, 251, 371, 553. Territory of Oregon v. CoU\man, 1 Or. 191; 129, 167, 171, 182, 387. Territory of Oregon, Hart v., 1 Or. 122. Territory of Oregon v. King, 1 Or. 106; 94, lis. Territory of Oregon, Latshaw v., 1 Or. 140. Territory of Oregon, Latshaw v., 1 Or. 146; 426. Territory of Oregon, Newby v., 1 Or. 163. Territory of Oregon v. Norris, 1 Or. 107; 94, 118. Territory of Oregon, O'Kelly v., 1 Or. 51. Territory of Oregon, Wood v., 1 Or. 223. Territory of Oregon, Young v., 1 Or. 213. Territory of Oregon ex rel. Kennedy V. Pyle, 1 Or. 149; 121, 226, 435. Terwilliger v. Multuoraali County, 6 Or. 295; 61, 193, 233, 305. The Pilot, Thompson v., 6 Or. 297. The Dalles Military Road, Schutz v., 7 Or. 259. Thomas, Duncan v., 1 Or. 314. 652 Table of Cases. Tliomas, Gray don v., 3 Or. 250. Thomas, McClanev., 1 Or. 288. Thomas, Moore v., 1 Or. 201. Thompson v. Territory, 1 W. T. 547; 45, 179, 180, 18G, 188, 265, 266, 362, 366, 429, 468, 469, 576, 579. Thompson v. Backenstos, 1 Or. 17; 44, 61. Thompson, Gnthrie v. , 1 Or. 353. Thompson V. Hawley, 14 Or. 199; 203, 521. Thompson v. jNIultnomah County, 2 Or. 34; 108, 304, 313, 349, 352, 356, 475, 503. Thompson v. Uglow, 4 Or. 369; 63, 223. Thompson v. Wolf, 6 Or. 308; 108, 115, 224, 288, 355, 373. Thompson v. Woolf, 8 Or. 454; 264, 465, 489. Thompson, Kelly v., 3 Or. 189. Thompson, Mogan v., 13 Or. 230. Ihompson, Phillippi v., 8 Or. 428. Thompson, Rutherford v., 14 Or. 236. Thompson, White v., 3 Or. 115. Thorp, Phillips v., 10 Or. 494. Thorndike v. Tliorndike, 1 W. T. 175; 156, 219, 332. Ticheuor v. Coggins, 8 Or. 271; 75, 78, 325, 441. Tichenor v. Knapp, 6 Or. 205; 465, 489. Tierney v. Tiernev, 1 W. T. 568; 8, 34, 35, 69, 70, 216, 219, 220, 221, 336, 339, 473, 474, 475. Tilley, State v., 9 Or. 125; 381. Tippin V. Ward, 5 Or. 450; 140, 193, 263, 268, 429. Tobey, Ferguson v., 1 W. T. 275. Toby V. Ferguson, 3 Or. 27; 347, 349, 461. Todd V. Huntington, 13 Or. 9; 77, 142, 489. Toild, Trullenger v., 5 Or. 36. Tolmie v. Dean, 1 W. T. 46; 53, 110, 117, 255, 850, 351, 363, 428, 430, 454, 533. Tolmie, Baldro v., 1 Or. 176. Tolmie v. Otchin, 1 Or. 95; 329, 475. Tolman, Neil v., 12 Or. 289. Tom, State v., 8 Or. 177. Tom, United States of America v., 1 Or. 26. Tom Louey, State v., 11 Or. 326. Tompkins v. Clackamas County, 11 Or. 364; 161, 163, 307, 495, 552. Tont^ue v. Gaston, 10 Or. 328; 199, 320. Torrencc v. Strong, 4 Or. 39; 81, 247, 369, 458, 462, 525. Town of I.a Fayette v. Clark, 9 Or. 225; 33, 505. Trabant v. Rummell, 14 Or. 17; 80, 531. Trainor v. Multnomah County, 2 Or. 214; 164, 381, 388, 402. Tribou v. Strowbridge, 7 Or. 156; 77, 125, 142, 360, 489, 496. Trullenger, Oregon Iron Co. v., 3 Or. 1. Trullenger v. Todd, 5 Or. 36; 31, 32, 334, 537. Trullinger v. Kofoed, 7 Or. 228; 383, 409, 450. Trullmger v. Kofoed, 8 Or. 436; 276, 280. Trullinger, Oregon Ii'on Co. v., 2 Or. 311. Trullinger, Jackson v., 9 Or. 393. Trullinger, iNIarsh v., 6 Or. 356. Trustees M. E. Church v. Adams, 4 Or. 76; 440, 557, 563. Trustees of T. A. and P. U., Tyler v., 14 Or. 485. Trutch V. Buftnell, 5 Or. 504; 301, 406, 408, 440. Trutch V. Bunnell, 11 Or. 58; 57, 301, 403, 408, 440. T'Vault, Marlin v., 1 Or. 77. Tualatin Academy and Pacific Uni- versity, Tyler v., 14 Or. 485. Tucker v. Salem Flouring Mills Co., 13 Or. 28: 30, 62, 64, 68, 195, 368, 427, 428, 472, 562, 569. Tucker, Roberts and Hoyt v., 1 W. T. 179. TurnbuU v. Farnsworth, 1 W. T. 444; 75, 144, 515. Turner v. Corbett, 9 Or. 79; 116, 141, 456. Turner v. Parker, 14 Or. 340; 103. Tustin V. Gaunt, 4 Or, 305; 8, 161, 246, 348, 349, 350, 353, 494. Twilight, Bergman and Berry v., 10 Or. 337. Tyler v. Trustees of T. A. and P. U. 14 Or. 485; 149, 156, 244, 301, 328, 443, 472, 560. Uglow, Thompson v. , 4 Or. 369. Umatilla County, Rhea v., 2 Or. 298. Umatilla County, Sargent v., 13 Or. 442. Umatilla County, Tavlor v., 6 Or. 394. Umatilla County, Taylor v., 6 Or. 401. Umatilla County, Vmcent v., 14 Or. 375. Underwood v. French and Moody, 6 Or. (i6; 252, 257, 348, 502. Union, Citj'' of, Nodine v., 13 Or. 587. Union, City of, Walsh v., 13 Or. 589. Union County, Heilnor v., 7 Or. 83. United States v. Tom, 1 Or. 20; 171, 318, 531. United States, Bennet v., 2 W. T. 170. Table of Cases. United States, Coaway v., 2 W. T •>.JG. United States, Fowler v., 1 W. T. 3 United States, Palmer v., 1 W. T. 5 United States, Leonide v I W T 153. ■' ^«r^i ''5t-ites, Shopoonmash v., 1 VV. 1. 188. United States, Watts v., 1 W. T. 288, united States, Smith v., 1 W. T. 2ij'^ Van Aerman, Gleason v., 9 Or. 343 Vandolf V. Otis, 1 Or. 153; 4S0. V annoy, Snyder v., 1 Or. 344. Van Sant v. Portland, Or. 395: 162. 233, 247, 357, 417. Vanschoiack, Wliiteaker v.. 5 0r. 113. Van Winkle v, Johnson, 11 Or. 4G9: 541. ' Vau^din, Miller v., 8 Or. 333. V eedor, Mosseau v., 2 Or 113 Victor V. Davis, 11 Or. 447 Vincent v. Umatilla County, 14 Or. 3/5; 159. 162, 163, 398, 505. Vincent, Crei-liton v., 10 Or. 56. T72"' ^^^^S^'' ^^^rJket Co. v., 7 Or. Vogt, Schmidt v., 8 Or. 344 Voos, King v., 14 Or. 91. ^,7«;'^,J^' State v., 4 Or. 324. Waddell V. Steamer Daisy, 2 W T 7G; 18, 95, 383. Wagonblast v. Whitney, 12 Or 81- 520, 521, 524. - ^r. 0.5, Wait, Davis v., 12 Or. 425. Wait, Harvey's Heirs "v., 10 Or. W^-J' n 5.- ?• ^- ^o- ^^ 3 Or. 91. Wait, a C. R. R. Co. v., 3 Or. 428 >V;ute, Uaxtor v., 2 W. T. 2''>8 Wald, Wilson v., 2 W. T .376 ^^^=^j'^^0Q V. Harrison,' 2 Or. 87- 96 Waling V. Sloop Christina, 1 Or. 430. \\a ker v. Goldsmith, 7 Or. 161; 409 Walker v. Goldsmith, 14 Or WS- 8 Walker, Hughes v., 14 Or. 481 359'''' ""■ '^''"^^''^y' 2 W. T. 286; ^'^foT'm^'''' P^ivcr Mining Co. v. ^^295.'^'^'""'' ^'''°*'' * ^'^^ ""■' 1 Or, Wallace, Baclielder v., 1 W T 107 Wallace, Rogers v., 10 Or 3S7 naU;i, W.illa, Moore v 2W T le^ Wdla Walla Cou-,tyv. Pil-J-^fi- T. 339; 24, 96. 97, 117 2i3°'54.. ^• Walla Walla au.l Columbia R." r" R to., McLormiek v., 1 W'. x 5l'> 653 ^^Vt^i??-&PCo. v.Budd, 2 VV. T. 336; 52, 191, 468 469 -if)? ^^.V''|J1;I'-^1^Co.:'bSv.!2 Wallis, Lin Hey v., 2 Or 203 ''^fl70,n|4i3''"'°"'^""^"^^-58^^ Walsh V. 0. R. & k Co., 10 Or 230- 246, 249, 364, 424, 4->5 49-^ ' Walts V. Foster, 12 Or. 247; "307, 320 Ward V. Buckley, 1 W. T. 279; 237, Ward V. Moorey, 1 W T 104- n Ward, Tippiu v., 5 Or. 450. Ward, Watts v., 1 Or. S6. Wardvvell v.Paige, 9 Or. 517; 431, ^o, 484, ooS. Ware, State ex rel. Shaw v., 13 Or 380. Warner v. Myers, 3 Or '>IS- •''S ^o 227, 252, 253, 333, 349, "393, 516. ' Warner v. Myers, 4 Or. 72; 227, 393, I Warner, Myers v., 3 Or. 21"? Warren v. Hembree, 8 Or .""l IS; 389 Warren, Rosen v., 2 Or. 17 Warren, Bailey v., 1 Or. 357. \Varrea, Hinman v., 6 O.-. 4J5 VVarren, Rowland v., 10 Or l->9 Wasco County, Oregon Steam Nav. Co. v., 2 Or. 20 J. Wasco County, Bird v.. 3 0- '^S'' Wasco County, Crossen v., g'o"- "^15 Wasco County, Cro.5.sen v., 10 Or 111" VVasco County, Gilliam Co. v 14 Or. 525. ' Wasco Woolen M. Co., Dalles Lum- bcr iM. Co. v., 3 Or. 527. Washburn v. Case, 1 W. T. 253- 444 5o7. ' ' Washington County, Chatfield v., 3 Or. 318. ^^w'''!'°nn" ^^'^^ <^«- ^- Kinnear, 1 W 1. 99; 196, 47, 519, 538. Washington Territory, Clarke v., 1 VV. 1. 08. Washington Territor}-, Corbett v., 1 VV. i. 4.31. Washingtoil Territory, Doctor Jack v., 2 W. T. 101. Waslnngton Territory, E.lwards v., Washington Territory, Elick v., 1 W. Washington Territory, Fox v 2 W T. 297 "-^ »., ,^ »» . Wa^liington Territory, Freany v., 1 654 Table of Cases. Washington Territory, Hartigan v., 1 ^V. T. 447. Washington Territory, Hayes v., 2 W. T. 286. Washington Territory v. Heywood, 2 W. T. 180; 379. Washington Territory, Hill v., 2 W. T. 147. Washington Territory ex rel. Evans, Hill v., 2 W. T. 147. Washington Territory, Leonard v., 2 W. T. 381. Washington Territory, Leschi v., 1 W. T. 13. Washington Territory, Lytle v., 1 W. T. 435. Washington Territory, McAllister v., 1 W. T. 3G0. Washington Territory, Regan v., 1 W. T. 31. Washington Territory, Rosencrantz v., 2W. T. 267. Washington Territory, Schilling v., 2 W. T. 283. Washington Territory, Tliompson v., 1 W. T. 547. V/ashington Territory, Walker v., 2 W. T. 280. Washington Territory, Wassissimi v., 1 W. T. G. Washington Territory, Watts v., 1 W. T. 409. Washington Territory, Yelni Jim v., 1 W. T. G3. Wassissimi v. Washington Territory, 1 W. T. G, 30, 190, 427. Waterman, Lemon v., 2 W. T. 485. Waterman and Katz v. Phinney, 1 W. T. 415; 43. Waters, David v., 11 Or. 448. Watkins v. Mason, 11 Or. 72; 33, 315. Watson V. Brooks, 11 Or. 271; 13G, 141. Watson V. Dundee Mortgage and Trust Investment Company, 12 Or. 474; 23, 398, 404, 407, 410. Watson, Harrington v., 11 Or. 143. Watson V. Janion & Co., G Or. 137; 140, 376. Watson V. Smith, 7 Or. 448; 142, 204, 344, 521. Watson, Ludwick v., 3 Or. 256. Watson, Yarnberg v., 13 Or. 11. Watticr V. Miller, 11 Or. 329; 199, 223, 320, 321, 488, 55G, 5G9. Watts V. Ward, 1 Or. 8G; 391, 505. Watts V. Uerritory, 1 AV. T. 409; 176, 312, 358, 359, 522, 556. Watts V. United States, 1 W. T. 288; 130, 172, 312, 358, 556. Waymire, Hayden v., 10 Or. 307. Weaver, Brummet v., 2 Or. 168. Webb V. Nickerson, 11 Or. 382; 27, 29, 145, 318. 388. Webber, O'Keefe v., 14 Or. 55. Weill V. Clark's Estate, 9 Or. 387; 9, 304, 320, 551. Weiner v. Lee Shing, 12 Or. 276; 134, 370, 454. Weise v. Smith, 3 Or. 445; 363, 566. Weiss V. Bethel, 8 Or. 522; 116, 158, 218, 219, 235, 292, 375, 441, 462, 563. Weiss V. Co. Commissioners Jackson Co., 8 Or. 529; 38, 41, 48, 57, 287. Weiss V. Oregon Iron and Steel Co., 13 Or. 496; 101, 102, 321, 322, 567, 570. Weissman v. Russell, 10 Or. 73; 38, 65, 473. Welch, Shively v., 2 Or. 288. Welch, Taylor v., G Or. 198. Welch, De Force v., 10 Or. 507. Welch, Haines v., 14 Or. 319. Welch, Wilson v., 12 Or. 353. Wellman v. Harker, 3 Or. 253; 319, 446, 494. Wells V. Applegate, 10 Or. 519; 14, 92, 143, 314, 4.-10. Wells V. Applegate, 12 Or. 208; 28, 58, 62, 460, 401. Wells V. Neff, 14 Or. 66; 119, 401, 516. Wells, Hannah v., 4 Or. 249. Wells, Schwabacher v., 1 W. T. 506. Wells, Swegle v., 7 Or. 222. Wells, Fargo, & Co. v. Wall, 1 Or. 295; 234, 274, 319, 343, 400. Wells, Fargo, & Co., Northern Pacific R. R. Co. v., 2 W. T. 303. Westbrook v. Chapman, 1 W. T. 227; 93, 142. Wetmore v. INIultnomah Coiinty, 6 Or. 403; 540. Wetmore v. Wetmore, 5 Or. 409; 218, 330, 440. Wheelan, Sanford v., 12 Or. 301. Wheeler v. Harrah, 14 Or. 325; 77, 511. Wheeler v. Port Blakely Mill Co., 2 W. T. 71; 384, 385. Wheeler, Carothers v., 1 Or. 194. Wheeler, Frarey v., 4 Or. 190. Wheeler, Smith Bros, v., 7 Or. 49. White V. Allen, 3 Or. 103; 20, 110, 234, 238, 239, 250, 253, 343, 345, 457, 403, 480, 488, 557, 574. White V. Commissioners of Multno- mah Co., 13 Or. 317; 127, 229, 230, 321, 543. White V. Delschneider, 1 Or. 254; 238, 4.39, 401. White V. Northwestern Stage Co., 5 Or. 99; 04, 193, 335, 343, 350, 'i07, 471, 475. Table op Cases. 655 White V. R-ybxim, 11 Or. 450; 265. White V. Thompson, 3 Or. 115; 78, 2.V2, 273. 278, :U6, 4G6. Wliite, Sohueider v., 12 Or. 503. Whitcaker v. Haley, 2 Or. 128; 129, 401, 449, 531, 543. Whiteakur v. Vanschoiack, 5 Or. 113; 222, 520. Whitley V. Murphy, 5 Or. 328; 2, 52, 56, G4, 157, 189, 331), 340, 343. "SYliitley, Glaze v., 5 Or. 1G4. Whitlock V. Manciet, 10 Or. 1G6; 24, 92, 270, 473. Whitlow V. Reese, 4 Or. 336; 158, 478, 479. Wliitney v. Darrow, 5 Or. 442; 96, 98. Whitney and State v. Johns, 3 Or. 533. Whitney, Smith v., 7 Or. 386. Whitney, Wagonblast v., 12 Or. 83. Whittier, Fuller, & Co. v. Blakely, 13 Or. 546; 384. Wliittle, Portland v., 3 Or. 126. Wilbur, Chapman v., 3 Or. .326. Wilbur, Chapman v., 4 Or. 362. Wilbur, Chapman v., 5 Or. 299. Wilco.x V. Keith, 3 Or. 372. Wiley, Jonea v., 1 W. T. 603. Wilev, School Land Commissioners v.,''lO Or. 86. Wiley, State v., 4 Or. 184. Wilhelm V. Woodcock, 11 Or. 518; 109, 211, 212, 276, 321, 403, 404. Willamette Falls Co. v. Clark, 1 Or. 113; 334, 536. Willamette Falls Co. v. Perrin, 1 Or. 182; 382. Willamette Falls Co. v. Remick, 1 Or. 109; 198, 381, .399. Willamette Falls Co. v. Riley, 1 Or. 1S3; 324, 3S2, 455, 533, 535, 536. Willamette Falls Co. v. Smith, 1 Or. 181; 113, 3.34, .381, 494. Willamette Falls Co. v. Williams, 1 Or. 112; 334,536. Willamette Falls C. & L. Co. v. Kelly and People's Trans. Co., 3 Or. 99; 192, 229, 232, 260, 267, 439, 566. Willamette Freighting Co. v. Stannus, 4 Or. 2;n; 131, 242. Willamette T. & L. Co., Dice v., 8 Or. GO. Willamette Trans. Co., Moore v., 7 Or. ^o3. Willamette Trans. Co., Moore v., 7 ' Or. 359. Willamette Valley and Coast R. R. Co., Lakin v., 13 Or. 436. Willey V. Morrow, 1 W. T. 474; 59, 69, 70, 156, 197, 370, 474. Williams, Ex parte, 1 W. T. 240; 303. Williams v. Ackerman, 8 Or. 405; 376, 377. Williams v. Columbia, 1 W. T. 95; 23, 112, 144, 192, 196, 256, 4.32. Williams v. Gallick, 11 Or. .337; 7, 39, 67, 85, 273, 281, 299, 497. Williams v. Knighton, 1 Or. 234; 113, 334, 453. Williams V. Miller, 1 W. T. 88; 77, 81, 86, 134, 14.3, 251, 255, 338, 429, 432, 450, 457, 461, 463, 4G7, 470, 475, 476, 515, 579. Williams v. Poppleton, 3 Or. 139; 119, 13.3, 192, 193, 257, 260, 261, 262, 267, 421, 423, 424, 427, 451, 455, 456, 516. Williams v. Schmidt, 14 Or. 470. Williams v. Shelby, 2 Or. 144; 96, 171, 372. Williams, Bailey v., 6 Or. 71. Williams, Willamette Falls Co. v., 1 Or. 112. Willis V. Hoover, 9 Or. 418; 139, 143, 563. Willis V. Or. R'y & Nav. Co., 11 Or. 257; 366, .396, 422. Wills V. Wilson, 3 Or. 308; 24, 91, 327, 430. Wilson V. Allen and Lewis, 11 Or. 154; 25, 406, 450, 541. Wilson V. City of Salem, 3 Or. 482; 157. Wilson V. Maddock, 5 Or. 480; 2G0> 267. , Wilson V. McEwan, 7 Or. 87; 5, 19, 206, 209, 242, 513. Wilson V. Shively, 10 Or. 207; 6, 442, 488, 490,»522. Wilson V. Shiveley, 11 Or. 215; 231, 486, 488. Wilson V. Wald, 2 W. T. 376; 37, 60. Wilson V. Welch, 12 Or. 353; 486, 569. Wilson, Adams v., 6 Or. 391. Wilson, Cogswell v., 11 Or. 372. Wilson, Dick v., 10 Or. 490. Wilson, Hackettv., 12 Or. 25. Wilson, Neil v., 14 Or. 410. Wilson, O'Riley v., 4 Or. 96. Wilson, State v., 6 Or. 428. Wilson, Sujette v., 13 Or. 514. Wilt V. Buchtel, 2 W. T. 417; 462, 528. Wiueburgh v. Schaer, 2 W. T. 328; 105, 107. Wingard v. Jameson, 2 W. T. 402; 118. Winkle v. Winkle, 8 Or. 193; 9, 162, 354, 502. Winn, Opitz v., 3 Or. 9. Winter v. Norton, 1 Or. 42; 1, 77, 253, 362. Winter, Norton v., 1 Or. 47. 656 Table of Cases. Winter, Norton v., 1 Or. 97; 1, 77. Winton, State v., 11 Or. 456. Wiutzingerode, State v., 9 Or. 153. Wirt, Shortess v., 1 Or. 90. Wisner v. Barber, 10 Or. 342; 194. Witham v. Osburn, 4 Or. 31S; 123, 304. Witljam, State v., 6 Or. 366. Wolcott V. Macldeu, 10 Or. 370; 141, 410, 551. Wokl, Schmieg v., 1 W. T. 472. Wolf V. Smith, 6 Or. 73, 38, 49, 390, 467. Wolf, Thompson v., 6 Or. 308. Wong V. Astoria, 13 Or. 538; 128, 168, 170, 175, 360, 413. Wood, Chavener v., 2 Or. 182. Wood V. Fitzgerald, 3 Or, 568; 123, 155, 227, 438. Wood V. Mastick, 2 W. T. 64; 71, 137, 203, 353, 404, 411, 461, 463, 511, 552. 563. Wood V. Riddle, 14 Or. 254; 159, 389, 441, 442, 505. Wood V. Territory of Oregon, 1 Or. 223; 183, 387, 561. Woodcock, Wilhelm v., 11 Or. 518. Woodruff, Carman v., 10 Or. 130. Woodsides v. Rickey, 1 Or. 108; 101, 355, 464, 477. Woodward v. Baker, 10 Or. 491; 335, 345, 347, 351, 401. Woodwai-d, Baker v., 12 Or. 3. Woolf, Thompson v., 8 Or. 454. Worthington, Pnget Sound Iron Co. v., 2 W. T. 472. Wren v. Fargo, 2 Or. 19; 96, 160, 240, 256, 516. Wren, Meeker v., 1 W. T. 73. Wright V. Edwards, 10 Or. 298; 10, 163, 354. Wright V. Young, 6 Or. 87; 274, 275, 276, 279. Wright, Oregonian R'y Co. v. , 10 Or. 162. Wright, State v., 14 Or. 365. Wyckoff, Shorey v., 1 W. T. 348. Wyman, Hoganv., 2 Or. 302. Yamhill Bridge Co. v. Newby, 1 Or. 173; 61, 549. Yamhill Co., Poppleton v., 8 Or. 337. Yarnberg v. Watson, 13 Or. 11; 68, 94, 364, 367. Yelm Jim v. Territory, 1 W. T. 63; 45, 61, 64, 66, 69, 184, 187, 191, 246, 266, 272, 318, 359, 365, 366. Yesler v. Oglesbee, 1 W. T. 604; 60, 118, 467, 527. Yesler, Seattle v., 1 W. T. 571. Yesler, Colman v., 1 W. T. 591. Yesler, Kowslowski v., 2 W. T. 407. Yocum and De Lashmutt, Sheppard v., 10 Or. 402. Yocum, Sheppard v. , ] 1 Or. 234. Young V. Territoxy of Oregon, 1 Or. 213; 529, 535. Young, Mann v., 1 W. T. 454. Young, Fatten v., 9 Or. 195; 97, 468. Young, Springer v., 14 Or. 2S0. Young, Wright v. , 6 Or. 87. Zachary v. Chambers, 1 Or. 321; 8, 524, 531. Zachary v. Swanger, 1 Or. 92; 192, 260. Zephyr v. Brown, 2 W. T. 44. Zieber, Norman v., 3 Or. 197. Zingsem, State v., 7 Or. 137. ^^ ■IIP il»'«i'iV.^ t UC SOUT- D 000 785 812 9 ^f^wf^0^\'- 'M^. ^;:m^.:y:::^: